Appellate Practice

Ten Tips to Improve Your Case on Appeal

A reviewing court can be an intimidating place, especially for the occasional appellate practitioner. Here are ten practical tips to put you at ease and strengthen your case.

Illinois is home to not only a talented group of reviewing-court judges, but also some procedural quirks that may be unfamiliar to the occasional appellate practitioner. With that in mind, here are 10 practical tips on various issues – some critical and some subtle – to improve one’s chances in an Illinois reviewing court prior to the oral-argument stage.

1. Standard of review is the key

The success of many, if not most, appeals rises and falls on the standard of review. Yet many practitioners fail to adequately develop an argument for the standard that best serves their appeal, while others entirely fail to identify an appropriate standard.

Identifying the appropriate standard of review should be a practitioner’s first task, and it should be considered before the notice of appeal is even filed. Most reversals occur on questions of law that are reviewed de novo, meaning no deference is given to the trial court’s ruling.

A prospective appellant who cannot persuasively argue that de novo review is appropriate might want to reconsider the appeal. Other standards of review, such as “clearly erroneous,” “abuse of discretion,” or “contrary to the manifest weight of the evidence” are more difficult for an appellant because they trigger deference to the trial judge. Trial judges are rarely found to have abused their discretion, and findings of fact are seldom contrary to the manifest weight of the evidence.

Conversely, an appellee should always push hard for a standard of review that defers to a trial judge’s ruling. This is especially true when the trial judge makes credibility determinations or other factual findings that are not typically overturned.

Finally, remember that an appeal with multiple issues might involve multiple standards of review. Thus, if a favorable standard of review cannot be established for the case as a whole, consider whether a favorable standard applies for particular issues.

Similar concerns apply to petitions for leave to appeal (PLAs) filed with the Illinois Supreme Court. Of the thousands of PLAs filed every year, the ones most commonly accepted involve de novo review. Specifically, the Illinois Supreme Court is primarily interested in issues of great legal importance, cases involving a conflict between appellate panels, cases requiring exercise of the court’s supervisory authority, and cases of a unique nature.¹ PLAs raising challenges to credibility determinations, discretionary rulings, or factual findings are often denied.

Thus, a divorce litigant who files a PLA contending that the trial judge abused her discretion in setting spousal maintenance might be wasting time and money, as might the criminal defendant who contends that the trial judge erroneously believed the victim’s testimony. Such cases are rarely accepted.

2. Improve your appendix

An appellant’s brief must include, as an appendix, a copy of the order under review, an index to the record on appeal, any materials that form the basis for the underlying ruling, and other items enumerated by rule.² Many appellants fail to satisfy this requirement, possibly because they don’t grasp its practical purpose.

If an appeal involves an important document (such as a contract, will, lease, or insurance policy), it should be appended to the brief because the record on appeal is sent only to the authoring justice’s chambers. Unless another justice specifically asks to see it, it might stay there until after the ruling is issued.

For example, in the first district, it’s unlikely the record on appeal will be shuffled up and down the hallway so that each member of the three-justice panel can examine it. In the other appellate districts, where justices’ offices could be hundreds of miles apart, three-judge review of the full record is even less likely. In a case before the seven-member Illinois Supreme Court, that bulky record containing the smoking gun document is probably not going to be shipped from Chicago to southern Illinois and all points in between.

The Illinois reviewing courts are moving toward an electronic record transfer system, but that program has not been fully implemented. Accordingly, include critical items in the appendix. Be careful, though – if a document is not part of the official record, attaching it to a brief is improper.³

Regardless, attaching a key document to an appellate brief gives the reviewing court immediate access during oral argument, which cannot be said for an electronic copy. Good appellate lawyers must ensure that important documents are in the record on appeal and the appendix.

3. Untimely notice of appeal? There’s still hope

Generally, a notice of appeal under Rule 303 must be filed “with the clerk of the circuit court within 30 days after the entry of the final judgment appealed from.”⁴ Too often, practitioners file their notice late, either unwittingly or perhaps hoping neither the court nor the appellee will notice.

Make no mistake, an untimely notice of appeal is almost always discovered. The court might discover it immediately and dismiss an appeal on its own motion, or it might find out only after the attorneys have spent countless hours (and clients’ dollars) briefing and arguing the appeal.

But tardiness is not always fatal. Even a litigant who fails to exercise the absolute right to file a Rule 303(a) appeal within 30 days may request leave to file a late notice of appeal.⁵ Such motions must present a reasonable excuse and be filed within 30 days of the original deadline (i.e., 60 days from the original ruling). Analogous provisions exist for criminal appeals, which the state used in its appeal in the Drew Peterson case.⁶

The rules likewise provide a procedure to file untimely PLAs in the Illinois Supreme Court.⁷ Thus, an attorney representing an appellee may be wise to avoid filing a motion to dismiss an untimely appeal until 60 days have passed since the appealable ruling, because doing so alerts the appellant to the problem while a cure remains possible.

4. Consider a stay or expedited appeal

Many litigants incorrectly conclude that filing an appeal is all it takes to preserve their rights on appeal. Unfortunately, they often ignore the importance of seeking a stay in the trial court, the appellate court, or both. The failure to seek a stay may result in a case being rendered moot, or perhaps in a pyrrhic victory with no chance of substantive relief.

One example is In re Tekela,⁸ which involved a mother whose parental rights were terminated. She filed a notice of appeal but did not seek a stay, thereby permitting her children to be adopted during the pendency of the appeal.

Eventually, the first district entered an order reversing the termination. Shortly thereafter, however, the appellate court learned for the first time that the children had already been adopted and living with a new family for roughly a year and a half.

On further appeal, the Illinois Supreme Court held that since Illinois law requires any attack on an adoption to be made within a year, and because the mother did not seek a stay of the termination order, the mother’s appeal was rendered moot. The court also noted that the mother could have, but did not, request that the case be placed on an accelerated docket⁹ and be given an expedited briefing schedule.¹⁰

Subsequent changes to the Supreme Court Rules addressed several of the issues in Tekela, but the changes generally pertain only to children and parental rights. Appellants in other cases should still consider whether a request for a stay or expedited review is necessary.

Practitioners should be aware of some twists on this topic in the context of interlocutory appeals. For example, discretionary interlocutory appeals taken under Rule 306 impose an automatic stay of trial court proceedings.¹¹In other contexts, an interlocutory appeal generally does not divest a trial court of all jurisdiction or serve as a stay, but it does restrain the trial court from entering orders that change or modify the order under appeal.¹²Finally, if a stay is not possible or practical, consider requesting an expedited briefing schedule or an accelerated docket.¹³

5. No court reporter? No problem (maybe)

The appellant bears the burden of presenting the appellate court with a sufficient record for review, and the absence of an adequate record severely undermines the appellant’s case.¹⁴ Accordingly, an attorney who conducts an important hearing without a court reporter commits a serious mistake.

Nonetheless, if the parties can agree and stipulate as to what was said in open court, they can file an agreed statement of facts.¹⁵ If they’re unable to do that, a litigant may file a “bystander’s report.”¹⁶ This requires a person who was present to accurately memorialize the testimony. This person may be, for example, a party or the witness.

The bystander’s report must be served on all parties within 28 days after the notice of appeal is filed. Additional deadline requirements exist for proposed amendments to the report, and eventually it must be presented to the trial judge who heard the case.

The trial judge will then resolve any disagreements over whether the bystander’s report accurately memorializes the testimony, and then certify the bystander’s report so that the appellate court can consider it. While this is an imperfect and difficult process that has a higher risk of error than a verbatim transcript, it is better than presenting the reviewing court with no record of proceedings.

6. Understand that a brief is a critical opportunity

In some appellate districts, draft rulings are prepared by the justice or her law clerks and provided to the panel in advance of oral argument. In others, a clerk prepares a “bench memo” in advance of oral argument that sometimes resembles a ruling except instead of saying something like “the court finds…,” it says “the court should find.…” Assuming the memo is adopted by the authoring justice and other panel members, it is converted into a formal opinion. Of course, if the authoring justice or panel is not comfortable with the contents of the draft opinion or bench memo, it will be modified before being issued as a final opinion. The Illinois Supreme Court follows a different procedure, and practices may vary from one reviewing-court judge to another.

The existence of these documents (whether in the form of a draft opinion or a bench memo) underscores the importance of the parties’ written briefs. These documents are prepared by the justices’ law clerks prior to oral argument, justices give fair consideration to their clerks’ analyses, and these documents are the foundation for a final opinion. That said, I do not suggest that oral argument is unimportant or secondary; in fact, some judges place great emphasis on oral argument, and sometimes draft rulings are changed significantly in reaction to it.

Nonetheless, an appellate brief is the first and best opportunity to make your case. If you have a critical point to make, don’t save it for oral argument. Indeed, many cases are not orally argued. A party must request it, and the requests are not always granted.

Finally, appellants should take full advantage of their reply brief. Reply briefs are an opportunity to attack the appellee’s arguments and obtain the last word. They should not be used to merely regurgitate points already made.

7. Frame the issues and tell a story…accurately

During his confirmation hearings, Chief Justice John Roberts said, “I think all good judges focus a lot on the facts. We talk about the law, and that’s a great interest for all of us. But I think most cases turn on the facts, so you do have to know those. You have to know the record.”

The Chief Justice raises a good point. Suppose you’re representing an appellant in a negligence case. The court doesn’t need a primer on the elements of negligence, so don’t spend much time setting forth these elements. Instead, focus on why the facts of your case involve a duty, breach of duty, causation, and damages. Keep in mind four important caveats when crafting a statement of facts, however.

Avoid being argumentative. This is not to say you should not frame and present your facts in the best possible light. Nonetheless, providing a fair and objective recitation of facts is generally more effective than giving an editorial.

Carefully avoid misstating facts or presenting them in a misleading way. Few things are more damaging to your case than misleading the court. These first two caveats are not just practice pointers; they are requirements. Supreme Court Rule 341(h)(6) expressly requires a statement of facts “necessary to an understanding of the case, stated accurately and fairly and without argument or comment….”

Be concise and limit the “story” to relevant and dispositive facts. Don’t spend time making a statement of facts lengthy. Focus on making it effective.

Remember the standard of review. For example, if the trial judge found that the appellee’s testimony was not credible, an appellant should highlight that because credibility determinations receive considerable deference. In contrast, if the case involves de novo review of a contract dispute, any favorable language in the agreement should be highlighted, and the trial judge’s analysis is less important.

8. Remember, formatting rules exist for a reason

The amount of paper that flows across the desk of an Illinois Supreme Court Justice is extraordinary. For that reason, Supreme Court Rule 341 sets forth the physical requirements for appellate briefs, including the page limitations and other rules regarding margins, spacing, and the like.¹⁷ Attorneys must sign a certificate of compliance confirming that the submitted brief follows these requirements.¹⁸

Attorneys sometimes attempt to surreptitiously skirt these rules with subtle deviations, such as typeface that is 11.5-point rather than required 12-point, or by using margins that are .9 inches instead of 1 inch. However, such efforts are often identified by the clerk’s office, which will likely refuse to accept the brief in that condition. A lawyer who waits until the last day to file a brief only to have it rejected by the clerk may face an embarrassing conversation with a client. Note, too, that noncompliance with Rule 341 may lead to sanctions.¹⁹

One other point to consider on this issue, this one being from the court’s perspective: attorneys who are willing to slyly disregard or disobey formatting rules may be perceived as likely to misstate the facts or law or otherwise mislead the court. Don’t jeopardize credibility by failing to comply with Rule 341, especially because that rarely strengthens the brief. Indeed, most practitioners do not need 70 pages to present an effective argument, and those with truly complex appeals may file a motion to exceed the page limitation.

9. Cite the best authorities available

Attorneys asking a court to do something should always aid the court by providing an authoritative basis for the request. Citing the best authorities available seems like a common-sense approach, but lawyers in both the trial and reviewing courts often make one of six mistakes in citing authority. Here’s how to avoid them.

Cite authority. Written arguments sometimes lack citation to any authority whatsoever, which violates Supreme Court Rule 341(h)(7). Note, too, that Rule 341(h)(7) dictates that case citations be provided with a certain level of competency because “a reviewing court is entitled to have the issues clearly defined with pertinent authority cited and is not simply a depository in which the appealing party may dump the burden of argument and research.”²⁰

Cite cases that are relevant. Lawyers sometimes cite cases that do not support their position, that support their adversary’s position, or that have nothing to do with the case.

Avoid string cites when they are unnecessary. If an adversary argues that no court has ever awarded the relief you seek, citing a case from each appellate district is an effective way to overcome that argument. However, citing five cases for a basic proposition of law is an effective way to annoy the court.

Make sure the cited cases are good law. That involves more than just determining whether the case has been directly overturned. For example, many practitioners do not know that appellate court cases prior to 1935 are not binding precedent.²¹

Look for controlling precedent. Make every effort to cite to either the Illinois Supreme Court or, less preferably, the appellate district in which you are litigating. While it usually makes little difference, the reality is that “one district of the appellate court is not always bound to follow the decisions of other districts.”²²

Succinctly explain the rationale. Lawyers sometimes cite a case without expressing a clear reason or rationale for the citation, or conversely, they spend an entire paragraph analyzing a case when less discussion will suffice. Consider whether a one-sentence parenthetical following a case citation would be sufficient or helpful.

10. Choose your battles wisely

One of the most important things a practitioner can do in the appellate court is to carefully choose the issues to appeal and how to best frame them. A lawyer on the losing end of a ruling might think that the trial judge committed a litany of errors and, occasionally, that happens. Seeking to convince the appellate court that every one of the trial judge’s rulings was erroneous is a good recipe for failure, because it’s likely that few, if any, constitute reversible error.

Worse yet, bogging down a reviewing court in unpersuasive minutiae will cause attorneys to expend significant “persuasion capital” and credibility better used on more critical issues. Therefore, instead of fixating on a dozen rulings the trial court got wrong, focus on the three or four most critical, most prejudicial, and most likely to warrant reversal.

Choosing one’s battles, however, requires caution. Points not argued on appeal,²³ raised for the first time on appeal,²⁴ or raised for the first time in a reply brief²⁵ are generally waived or forfeited. Further, prudent attorneys will follow Rule 303(b)(2) by clearly specifying the judgment or order being appealed²⁶ and will recognize that the Illinois Supreme Court routinely deems arguments as waived if they were not identified in the appellant’s PLA.²⁷

Litigating in a reviewing court can be daunting for many attorneys, especially those who seldom do it. Ideally, these 10 tips will give the occasional appellate practitioners a higher level of comfort and understanding of the reviewing process and increase the effectiveness of their arguments.

Hon. John C. Anderson is a circuit judge in Twelfth Judicial District (Will County). He is a member of Illinois Supreme Court Rules Committee and a former law clerk to Chief Justice Thomas L. Kilbride.

Ill. S. Ct. R. 315(a) (eff. Feb. 26, 2010).
Ill. S. Ct. R. 342(a) (eff. Jan. 1, 2005).
See, e.g., Harshman v. DePhillips, 218 Ill.2d 482, 503, 844 N.E.2d 941, 945-46 (2006).
Ill. S. Ct. R. 303(a) (eff. June 4, 2008).
Ill. S. Ct. R. 303(d) (civil cases) (eff. June 4, 2008).
Ill. S. Ct. R. 606(c) (eff. Mar. 20, 2009).
Ill. S. Ct. R. 315(b) (eff. Feb. 26, 2010).
In re Tekela, 202 Ill. 2d 282, 780 N.E.2d 304 (2002).
Ill. S. Ct. R. 311 (eff. Feb. 26, 2010).
Ill. S. Ct. R. 343(c) (eff. July 1, 2008).
Ill. S. Ct. Rs. 306(a)(1) through (9) and 306(c)(5) (eff. Feb. 16, 2011).
See Witters v. Hicks, 338 Ill.App.3d 751, 755-56, 790 N.E.2d 5, 10 (2003).
Ill. S. Ct. Rs. 311(b) (eff. Feb. 26, 2010) and 343(c) (eff. July 1, 2008).
People v. Hunt, 234 Ill.2d 49, 58, 914 N.E.2d 477, 481 (2009).
Ill. S. Ct. R. 323(d) (eff. Dec. 13, 2005).
Ill. S. Ct. R. 323(c) (eff. Dec. 13, 2005).
Ill. S. Ct. R. 341 (eff. July 1, 2008).
Ill. S. Ct. R. 341(c) (eff. July 1, 2008).
Ill. S. Ct. R. 375 (eff. Feb. 1, 1994).
In re Marriage of Baumgartner, 237 Ill.2d 468, 474, 930 N.E.2d 1024, 1027 (2010).
Bryson v. News America Publications, Inc., 174 Ill.2d 77, 95, 672 N.E.2d 1207, 1217 (1996).
In re May 1991 Will County Grand Jury, 152 Ill.2d 381, 398, 604 N.E.2d 929, 938 (1992).
Ill. S. Ct. R. 341(h)(7) (eff. July 1, 2008).
Parks v. Kownacki, 193 Ill.2d 164, 180, 737 N.E.2d 287, 296 (2000).
Salerno v. Innovative Surveillance Technology, Inc., 402 Ill.App.3d 490, 502, 932 N.E.2d 101, 113 (2010).
Ill. S. Ct. R. 303(b)(2) (eff. June 4, 2008).
Ill. S. Ct. R. 315(c)(3) (eff. Feb. 26, 1010); see also People v. McDonough, 239 Ill. 2d 260, 276, 940 N.E.2d 1100, 1111 (2010).

If you get a chance, please sign this poor woman’s petition for justice:

https://change.org/p/presidant-donald-trump-lets-change-how-cps-dcfs-operates-now?signed=true

and look at her wish list to clean up DCFS/CPS:

SOMETHING NEEDS TO BE CHANGED IN THIS SYSTEM ON HOW THEY OPERATE AND EVALUATE THESE CASES! LET THIS GO NATIONAL PLEASE!!!!!!!!!!!
IDEAS:
a.) There needs to be more state workers to take over extra cases so that the children and families cases don’t go longer than they need to and to make sure notes, documents, etc. are all correct and appropriate.

b.) Laws need to be uniform throughout the nation. When interstate cases happen this makes it a harder and the cases take much longer since it is more complex.

c.) Children shouldn’t be taken away until there is a true evidence in a case to make that case true unless there is evidence that is apparent right away for the safety of the children, but the parents still should have a fair trial.

d.) Parents should be told their rights. Many times this doesn’t happen and most people don’t know until its too late and parents are stripped of their rights.

e.) There should be more than one person (judge) involved in these cases. Why should one person determine what happens to these families and children? There should be people that are maybe experienced in foster care etc. taking over these cases to help determine what needs to be done.

f.) Grandparents and blood relatives (aunts, uncles, etc.)should have rights to their families children. Some families are small and they need to take that into consideration. KEEP THESE CHILDREN WITH THEIR FAMILIES IF AT ALL POSSIBLE!

g.) If one parent is being investigated for abuse, neglect, etc. the children should go to the parent that is not involved in doing so until the courts deem that the case is untrue. Some parents are falsely accused but in some cases this is true! Why should the children continue to live with a possible abusive/neglectful parent?

h.) Cases that were falsely accused should be closed or cases where a parent/parents/family are falsely accused to be taken off record because in some cases it interferes with a parent or both parents getting a job. There is a statue of limitations that makes it hard for people to fight to get their cases off their file. How is a parent supposed to provide for their children in these cases?

i.) Schools , daycares, etc. should be more educated on how to deal with foster children and know more when to report possible abuse.

j.) Free parenting laws nationwide to allow parents to raise their children the way they see fit to an extent. Children will grow up to be more independent.

k.) Foster parents should be thoroughly checked and have a psychological evaluation. There are too many foster parents that abuse foster children both physically, sexually, and emotionally.

l.) Agencies should have computerized notes to make it possibly easier for the caseworkers and so they hopefully make more accurate notes and notes, documents won’t get lost as easily.

m.) Parents/relatives should be retried if the cases against them were false or information was misconstrued.

****We need to change this system in order for these children and families to have unnecessary emotional trauma and PTSD that takes years or therapy to overcome!****
THANK YOU FOR YOUR TIME IN LISTENING TO MY THOUGHTS IN CHANGING THIS SYSTEM AND SIGNING MY PETITION!

OUR FAMILY APPRECIATES IT AND HELP CHANGE THIS SYSTEM SO CHILDREN CAN COME HOME AND THRIVE IN THE RIGHT FAMILY!

YOU CAN BE THE CHANGE!!!! MAKE IT HAPPEN!!! PLEASE SIGN!!!!!!!!!

Sincerely,
Ashley Szekeres

How to Sue Child Protective Services

Each state has its own Child Protective Services (CPS) agency that is responsible for protecting the health and welfare of children. CPS investigations can be traumatic and stressful for both parents and children. However, emotional distress alone does not give you the right to sue CPS. Since CPS social workers are government agents, they cannot act in ways that violate your established civil rights. An overzealous CPS worker may violate your constitutional right to due process, or your protection from unreasonable search and seizure. When that happens, you may be able to sue for monetary damages.^[1]

Part1

EditBuilding Your Case

1
Create a chronological outline of events. Beginning with your first encounter with CPS, draft an account of each encounter or communication you’ve had with CPS social workers and other staff members.^[2]
- Write down the names, job titles, and direct contact information of every individual at CPS who contacted you or communicated with you in any way.
- You also want outlines of any other activities that have anything to do with your children or the reasons CPS became involved with your children.
2
Gather any related documents and other evidence. You should already have been documenting every interaction you had with CPS. All of these records are now evidence you can use in your lawsuit.^[3]
- If you had written documents that you can no longer locate, make a note of them. CPS should have copies as well, and you can request them later.
- You also want to gather any documents that have anything to do with the care of your children. For example, if you’re home schooling your children, gather school schedules, assignments, and curricula and make copies.
3
Consult an attorney. Civil rights lawsuits in federal court are notoriously complicated. If you’ve decided to sue CPS for violating your constitutional rights, you need an experienced civil rights attorney to represent you.^[4]
- Civil rights attorneys typically offer a free initial consultation, so you can use this opportunity to speak to several attorneys. That can help you choose the best attorney for your case.
- These lawsuits can drag on for a long time. Pick an attorney who is passionate about your case and who you get along with – you’ll be spending a lot of time with them, and discussing some potentially sensitive issues.
- If you have been brought up on criminal charges of child abuse or neglect, you may already have a criminal defense lawyer. Ask them for a referral to a civil rights attorney who can help you sue CPS.
4
Identify an established right. The first hurdle you’ll face is pointing to a specific, established constitutional right that CPS violated while working with you and your children. This is a legal argument. Your attorney will review your documents and notes to determine which of your civil rights have been violated in your situation.^[5]
- This is part of the reason documenting all of your interactions with CPS is so important. Something that seems unfair to you may not necessarily rise to the level of a constitutional violation. However, something you thought insignificant might actually be a big deal.
5
Calculate your damages. You may have heard of parents who sued CPS for hundreds of thousands or even millions of dollars. However, the amount of money must be directly related to the violation of your rights.^[6]
- Your attorney will start with actual damages, if you have any. For example, if you and your spouse have been seeing a counselor as a result of the trauma you experienced from dealing with CPS, that expense may be considered actual damages.
- Additional damages, known as punitive damages, may be available to you if the actions of the CPS social workers involved in your case were particularly egregious.

Part2

EditInitiating Your Lawsuit

1
File a complaint. Typically, complaints are not extremely detailed. However, a complaint in federal court that alleges violations of civil rights requires more information than the typical complaint. If the violations aren’t explained correctly, the lawsuit may be thrown out. This is why you need an experienced civil rights attorney.^[7]
- You don’t have to prove anything or submit any evidence when you file your complaint. At this point, you’re merely making allegations.
- Your attorney will file your complaint in the federal district court that has jurisdiction over the county where the CPS agency is located. You may have to pay the $400 filing fee, or your attorney may pay it and add the amount to the costs of your lawsuit.
2

Have CPS served with the complaint. Once your complaint is filed, CPS must be notified of the lawsuit so that it has the opportunity to respond. Your attorney typically will have the complaint served on the attorneys of record for CPS.^[8]
3
Evaluate the response from CPS. When CPS is served with your complaint, the agency has a limited period of time to file an answer with the court. A copy of that written answer will be delivered to your attorney.^[9]
- Your attorney will go over the response with you. Typically, the answer will deny all of the allegations and raise the defense of qualified immunity.
- The response from CPS may include a motion for summary judgment. Similar to a motion to dismiss, this motion argues you have failed to state a claim for which the court can provide any legal or monetary relief.
4
Attend the summary judgment hearing. When you sue CPS, the agency will likely raise the defense of qualified immunity. While technically a defense, if the court grants the agency (and its social workers) qualified immunity, you won’t be able to sue the agency at all.^[10]
- When CPS argues it is entitled to qualified immunity, the judge must hold a hearing to decide this question before you can move forward with the lawsuit. Until this matter is decided, you won’t be able to do any further work or information gathering on your lawsuit.
- Your attorney and the attorneys for CPS will submit lengthy briefs to the court arguing both sides of the issue. The judge may decide the question after reading these briefs, or they may have a hearing in court.
- If the judge denies CPS qualified immunity, you still may not be able to move forward to the next stage of litigation. CPS has the right to appeal that decision and argue to an appellate court that the agency is entitled to qualified immunity.

Part3

EditGoing to Trial

1
Send written questions and requests to CPS. Provided the judge rules that CPS is not entitled to qualified immunity, you will proceed to the discovery phase. You will work with your attorney to create written questions and requests for documents, which must be answered by CPS.^[11]
- You will request CPS’s entire case file related to your family, as well as any internal documents, including emails, that are related to the investigation of your family.
- The documents and answers to questions may reveal additional problems or violations that you didn’t know about before.
2
Depose the social workers involved. A deposition is an interview under oath. Since so much of your case relies on the subjective beliefs and interpretations of the social workers involved, these depositions will be crucial.^[12]
- You may or may not need to attend the deposition. Your attorney may want you there, or they may decide that it’s better if you’re not there.
- Regardless of whether you attend, your attorney will go over the deposition with you afterward and explain how it affects your case.
3
Prepare for your own deposition. The attorneys for CPS will likely want to depose you as well. Your attorney will meet with you at least once to go over likely questions you’ll be asked and explain to you how to respond to deposition questions.^[13]
- Generally, you want to answer the questions directly and honestly, but refrain from rambling or further conversation. For example, if you are asked a yes/no question, your answer would be “yes” or “no,” without elaboration.
4
Answer questions from CPS. Just as you sent written questions to CPS, the agency will likely send written questions for you to answer as well. Your attorney will draft the specific answers after consultation with you.^[14]
- Your attorney may object to some of the questions. If they do, they’ll explain to you why you don’t have to answer those questions.
- Even though these questions are in writing, they are still considered to be under oath. Answer each question as honestly and accurately as you can. If you don’t remember something, don’t guess.
5

Participate in pre-trial hearings. Judges typically schedule numerous hearings to make sure the litigation is on track and progressing on schedule. You won’t have to attend many of these hearings or meetings personally. Your attorney will update you on what happened.^[15]
6
Evaluate any settlement offers. Lawsuits in federal court seldom make it to trial. Discovery can drag on for months, and most litigants prefer settling the case to avoid the uncertainty of trial. The judge may encourage settlement talks or preside over a settlement conference.^[16]
- Any settlement offers from CPS will be communicated to your attorney. Your attorney will present the offer to you and offer their advice. Regardless of what your attorney recommends, the decision of whether to accept or reject the settlement is solely your own.

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https://masslive.com/expo/news/erry-2018/07/1d8d81b44f6371/domestic-violence-victims-stru.html

Domestic violence victims struggle in family courts to retain custody of children

By Shira Schoenberg | sschoenberg@repub.com | Posted July 29, 2018 at 05:00 AM

Kristin LaFratta / MassLive

Essex Probate and Family Court in Salem.

At a court hearing for a restraining order, Jaime’s ex-husband admitted he pushed her down the stairs in front of her child, pulled her hair, slapped her face and held her against a wall, she wrote in motions filed in Essex Probate and Family Court.

In other court documents, the man admitted that during their marriage, verbal fights escalated into physical fights — and in one instance, he assaulted her, then voluntarily enrolled in anger management counseling.

During a custody battle, Jaime alleged that he continued to hurt her and their child. He denied it.

A judge concluded that both parents physically assaulted each other during their marriage, culminating in the assault by the father. After the divorce, the judge wrote in a ruling, Jaime “overreacted” to events. He found no evidence that the father was a threat to the child.

The judge awarded legal custody to the father to make decisions about the child, and the parents shared parenting.

Massachusetts law requires judges to take domestic violence into account when determining custody so the child, barring special circumstances, is not placed with an abuser. But interviews with family lawyers, advocates for domestic violence victims, counselors for abusers, academics and battered women describe a pattern of family court judges holding domestic violence against the woman in custody battles.

“It works immediately against you,” Jaime said. “Lawyers will say keep your mouth shut about domestic violence, because you’ll lose custody of your child.”

The Republican is not identifying the victims of domestic violence or their partners in this story because of the sensitive nature of the accusations.

The treatment of domestic violence victims in family and probate court is neither a new issue, nor one specific to Massachusetts.

“I’ve been appalled by the family law response in Massachusetts to domestic violence for over 15 years now,” said Lundy Bancroft, a Western Massachusetts expert who counsels abusers, wrote a book on domestic violence and has worked as a guardian ad litem, appointed by the court to look after children’s interests. “It’s case after case after case of not believing what the woman is saying without any valid basis for dismissing her reports of the history of domestic violence. There’s a complete failure to do a proper investigation and a dismissing of her reports based on completely spurious reasoning.”

A 1989 Supreme Judicial Court study found that gender bias existed in favor of fathers in custody cases, and many judges did not consider violence against women relevant in determining custody.

In 1998, Massachusetts passed a law creating a “rebuttable presumption” that being placed with an abusive parent is not in the best interests of a child. A parent who the court finds is abusive has the burden of proving why they should get custody.

Yet a 2002 study by Wellesley Centers for Women found that Massachusetts family courts were continuing to place children with abusive parents. The report found that judges and court personnel often minimized or ignored women’s reports of abuse, or refuse to investigate or credit them.

Submitted photo

Lundy Bancroft

In May, Joan Meier — professor at George Washington Law School and founder of DV LEAP, which handles legal appeals for domestic violence victims — presented the first comprehensive national study of how claims of domestic violence, child abuse and child sexual abuse affect custody cases, based on 4,000 online judicial opinions over 10 years.

Meier said the results confirm anecdotal experiences.

“Family courts don’t like hearing about abuse claims that are made against fathers,” Meier said. “You see a lot of vocal hostility toward mothers who raise these issues and persist in raising issues.”

Meier’s study found that when a mother claimed abuse and a father claimed the mother was trying to alienate the children, the court credited the abuse claims only 23 percent of the time.

Meier found that fathers win cases at approximately the same rate when domestic violence is alleged as when it is not, and fathers win more often when child abuse is alleged.

“There’s a very strong commitment to maximizing a father’s access to kids in these cases even when abuse is alleged,” Meier said.

There is little recent data from Massachusetts.

But preliminary results from a Boston College study about domestic violence survivors’ experience in Massachusetts probate courts identified similar themes. Survivors told researchers that they felt reporting abuse made things worse for them in court, that the court gave the abusive parent an advantage and that their reporting of abuse was discounted.

George Washington University photo

Joan S. Meier

According to police and medical reports, Cailin reported in 2011 that her husband had assaulted her, leaving her with a spinal injury, in severe pain, unable to walk without crutches and requiring surgery.

In divorce proceedings in Essex Probate and Family Court, Cailin said her husband had a history of domestic violence and abuse against her. She accused him of abusing their three children.

Her husband responded that Cailin’s accusations were “lies and trickery.” Years of litigation ensued and multiple investigations by the Department of Children and Family.

Cailin’s husband was given primary custody.

“(Courts) don’t evaluate domestic violence, they don’t really know in what context to evaluate it,” Cailin said. “Rather than being capable of diagnosing a trauma survivor, they pathologize them as paranoid, delusional.”

Part of the problem, experts say, is probate judges’ inability to recognize domestic violence.

Margaret Drew, a lawyer who represents domestic violence victims and a professor at University of Massachusetts School of Law, said judges look for physical violence, but may not recognize symptoms of emotional abuse, financial abuse or threats of violence.

Judges may not understand the impact of trauma, which can affect a woman’s ability to testify.

“The party who is the abuser comes into court, is well-organized, dressed decently and presents him or herself very well,” Drew said. “Then you have a person claiming to have been abused come into court. She may be disorganized because of trauma, she may not have had time to look her best, she may present (testimony) in a nonlinear fashion.”

A domestic abuse survivor might have been isolated by her partner and not have a job, or might have left her house and not have a stable place to live.

Probate judges are not as familiar with cases involving violence as District Court judges. “I think once judges understand that impact of trauma and understand the dynamics of abuse and how abuse manipulates every part of a person’s life, it become much easier to sort out who’s been abused and who’s the abuser,” Drew said.

Drew said she represented one woman who was denied a restraining order after telling a judge that her husband turned off her utilities. The woman then told Drew, after questioning, that her husband had strangled and physically abused her. But she only applied for the restraining order after her husband turned off the heat, which harmed her son. Drew said it takes specialized training for a judge to know how to question someone to uncover these stories of abuse.

University of Massachusetts Dartmouth photo

Margaret Drew

The prevalence of domestic violence in family court was confirmed by a 2011 pilot study in Norfolk County, where litigants went through a screening for domestic violence that included surveys and interviews. The study found that domestic violence was present in a much higher percentage of cases than court officials were previously aware of.

Of 112 cases, nearly half involved a restraining order, and 74 percent had some “red flag” indicating domestic violence.

Jamie Sabino, an attorney with Massachusetts Law Reform Institute who was involved in the study, said the research showed that people often do not present evidence in court or even identify themselves as a victim of domestic violence unless questions are asked in the right way.

She said a victim might appear hysterical, or might have any overly “flat” affect, which could make a judge question their account. “How courts get information is challenging anyway, and when you have a layer of domestic violence and trauma, it makes it even more difficult,” Sabino said.

David Adams, cofounder of Emerge, a batterers’ intervention program in Cambridge, who has testified as an expert witness in domestic violence cases, said a lack of training means judges often think an abuser who comes off as charming is innocent. Abusers, he said, are, “quite often very good at flipping the script and presenting themselves as the victim.”

Abusers often engage in harassment through the court process, filing motion after motion and requiring their partner to respond, he said.

Sara Stanley, deputy director at HAWC, which provides services to domestic violence victims, said women are often accused of lying about abuse to get a custody advantage.

Stanley said part of the problem is the judicial system is set up to encourage cooperation and shared parenting.

“It’s gone to the point where it’s not just encouraging cooperation, it’s compelling cooperation. And when you have the situation of domestic violence, that doesn’t work,” Stanley said. “You cannot co-parent with someone whose entire goal is to control you.”

Stanley said she has also seen abusive parents using custody proceedings to harass their partners — for example, repeatedly filing contempt orders if a parent drops a child off a few minutes late.

Stanley said even after one partner was convicted of domestic violence, judges often give shared parenting rights to that partner. Stanley called the practice “concerning” because it does not account for any trauma the child might have experienced in witnessing the violence, and does not account for the risk the parent might be abusing their next partner.

Some do see the issue differently.

Patrick McCabe, co-chairman of the Boston-based Fatherhood Coalition, which advocates for fathers’ rights, said he has seen many cases in the past of a mother being granted a restraining order even without making specific allegations. Then, the father has difficulty seeing the children.

“What we’ve seen is restraining orders were handed out like candy. Whoever got it was quickly advantaged,” McCabe said.

That is starting to change, he said, with judges requiring a higher standard to issue restraining orders.

AP photo / Elise Amendola

Judge Marianne Hinkle sits down in her courtroom at Woburn District Court in Woburn, Mass., Friday, March 1, 2013.

A law signed by then-Gov. Deval Patrick in 2014 mandated training in domestic violence and sexual assault for all trial court judges, clerks, guardians ad litem and other court personnel, to be given at least once every two years.

District Court Judge Marianne Hinkle heads the trial court’s Domestic Violence Task Force and has overseen the training. The task force spent over a year developing a curriculum that includes four online training modules. They cover the impact of domestic violence on victims, including trauma; the impact of domestic violence on children; identifying risk factors; and the use of violence in intimate partner relationships.

According to court officials, 44 of 49 judges in Probate and Family Court have completed the online training, as have 574 of 603 guardians ad litem.

All probate judges have also participated in an in-person training, in which participants simulate being part of a domestic violence scenario and make choices based on the resources they are assigned.

“We’ve gone far and above what anybody expected us to do,” Hinkle said.

While it is too early to measure the impact, Hinkle said the goal is to address some of the issues people have identified — for example, with judges not knowing how to identify trauma.

“I think people found it to be a very helpful experience in terms of understanding the levels of complexity involved in domestic violence,” Hinkle said.

Forbes Magazine: 21 Trillion Missing from U.S. Treasury

Forbes magazine just yesterday became the first major media to blow the lid off of $21 trillion that have gone missing from the US treasury. The entire article is copied below. To give an idea of how much money that is, if you divide the entire US population of around 325 million into $21 trillion, the amount missing is equivalent to $65,000 for every man, woman, and child in the country.

CBS News in 2002 was the first to report on the much smaller amount of $2.3 trillion missing from the Pentagon, as acknowledged by then Secretary of Defense Donald Rumsfeld in a report on the Dept. of Defense website. Rumsfeld’s report was later strangely removed from the website, but is still available on the Internet archive.

No other media picked up on this mind-blowing story. What should have been a top headline-grabbing story of highest concern to all Americans was simply dropped. Since then, a few major media have published isolated articles on missing trillions, as summarized on this revealing webpage, yet again, these stories were not given the top headlines they deserved. They thus attracted little notice and were dropped, so the public remained uniformed of this concerning news.

A courageous former Assistant Secretary of Housing and Urban Development under George H. W. Bush by the name of Catherine Austin Fitts couldn’t believe this vitally important story was being largely ignored by the media. An incredibly sharp economist who once served as managing director of the Wall Street investment bank Dillon, Read & Co, Fitts researched further and has been reporting regularly on the many trillions missing on her highly informative and inspiring website solari.com. The media has conspicuously avoided her detailed work on this.

Michigan State professor of economics Mark Skidmore discovered the excellent work of Fitts several years ago. He couldn’t believe Fitts claim that $6.5 trillion were missing from the US government. Thinking she had mistakenly written trillions instead of billions, he and his graduate students sifted through thousands of US government reports and were astounded to find not only that Fitts was right, but that the amount was even greater that Fitts had thought.

Skidmore eventually worked together with Forbes magazine contributor Prof. Laurence Kotlikoff of Boston University to compose the below article blowing the lid off this huge cover-up of $21 trillion gone missing from government coffers. Note that once certain officials saw Skidmore exposing this, the government removed many of the incriminating documents from their websites. But he wisely had downloaded all of the documents and has reposted this incriminating information on the website of Fitts on this webpage.

You can help to inform the public of this huge cover-up by spreading this news to all of your friends and colleagues. It’s time for us to join in demanding full transparency on how our tax dollars are used and to expose the major corruption taking place. See the “What you can do” section below the article for more ways you can make a difference. Thanks for caring. Together, we can build a brighter future for us and our children.

With best wishes for a transformed world,
Fred Burks for PEERS and WantToKnow.info
Former White House interpreter and whistleblower
December 9, 2017

Note: Watch Prof. Skidmore discussing this astounding news in this interview.

Has Our Government Spent $21 Trillion Of Our Money Without Telling Us?
By Laurence Kotlikoff
Forbes magazine, Dec 8, 2017

I am co-authoring this column with Mark Skidmore, a Professor of Economics at Michigan State University.

“No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.” ~ Article I, Section 9, Clause 7, The US Constitution

On July 26, 2016, the Office of the Inspector General (OIG) issued a report “Army General Fund Adjustments Not Adequately Documented or Supported”. The report indicates that for fiscal year 2015 the Army failed to provide adequate support for $6.5 trillion in journal voucher adjustments.

According to the GAO’s Comptroller General, “Journal vouchers are summary-level accounting adjustments made when balances between systems cannot be reconciled. Often these journal vouchers are unsupported, meaning they lack supporting documentation to justify the adjustment or are not tied to specific accounting transactions…. For an auditor,journal vouchers are a red flag for transactions not being captured, reported, or summarized correctly.”

(Note, after Mark Skidmore began inquiring about OIG-reported unsubstantiated adjustments, the OIG’s webpage, which documented, albeit in a highly incomplete manner, these unsupported “accounting adjustments,” was mysteriously taken down. Fortunately, Mark copied the July 2016 report and all other relevant OIG-reports in advance and reposted them here. Mark has repeatedly tried to contact Lorin Venable, Assistant Inspector General at the Office of the Inspector General. He has emailed, phoned, and used LinkedIn to ask Ms. Venable about OIG’s disclosure of unsubstantiated adjustments, but she has not responded.)

Given that the entire Army budget in fiscal year 2015 was $120 billion, unsupported adjustments were 54 times the level of spending authorized by Congress. The July 2016 report indicates that unsupported adjustments are the result of the Defense Department’s “failure to correct system deficiencies.” The result, according to the report, is that data used to prepare the year-end financial statements were unreliable and lacked an adequate audit trail.

The report indicates that just 170 transactions accounted for $2.1 trillion in year-end unsupported adjustments. No information is given about these 170 transactions. In addition many thousands of transactions with unsubstantiated adjustments were, according to the report, removed by the Army. There is no explanation concerning why they were removed nor their magnitude.

The July 2016 report states, “In addition, DFAS (Defense Finance and Accounting Service) Indianapolis personnel did not document or support why DDRS (The Defense Department Reporting System) removed at least 16,513 of 1.3 million feeder file records during the Third Quarter.”

An appendix to the July 2016 report shows $2 trillion in changes to the Army General Fund balance sheet due to unsupported adjustments. On the asset side, there is $794 billion increase in the Army’s Fund Balance with the U.S. Treasury. There is also an increase of $929 billion in the Army’s Accounts Payable.

This information raises additional major questions. First, what is the source of the additional $794 billion in the Army’s Fund Balance? This adjustment represents more than six times appropriated spending. Second, do these transfers represent a flow of funds to the Army beyond those authorized by Congress? Third, were these funds authorized and if so when and by whom? Fourth, what is the source of these funds? Finally, the $929 billion in Accounts Payable appears to represent an amount owed for items or services purchased on credit. What entities have received or will receive payment?

Note: The above article is copied from the Forbes magazine website on this webpage.Watch Prof. Skidmore discussing this astounding news in this interview.

from https://custodywars.com/2018/07/alex-jones-exs-custodywars-com-announces-video-series-footage-the-jury-never-saw-2/

When Judge Orlinda Naranjo refused to even set a Hearing for Kelly Jones’ Emergency Temporary Restraining Order, Kelly said she wouldn’t leave the Courthouse until her Motion was set.

The Emergency TRO was filed the same week that Kelly’s ex, Alex Jones, was taken off YouTube and Facebook (blocked) for Hate Speech and Child Endangerment.

When an Emergency Ex Parte TRO is filed, it is the Judge’s duty to hear it immediately.

Kelly stayed in her car overnight with her friend, Dawn Balli, who lost her daughter in Naranjo’s Court.

The next morning, when Kelly went to the Administrative Court to get the Hearing set, she found herself surrounded by five Sheriff’s Deputies.

One grabbed her phone.

Kelly has experienced years of bias, intimidation and injustice in the Travis County Court system.

Please watch and share this far and wide. Kelly needs people to understand and get outraged about Court corruption in Travis County, so that she will finally get her children the protection they need and deserve from abuse and endangerment while in the possession of Alex Jones.

We all know that nursing homes are the gulags and poor houses for the elderly. The courts force them there. Every resident in a nursing home cries out to go home or go to a home like setting. Their civil and human rights are ignored because they are over 70, over 80 or whatever. They are in wheel chairs. They are drugged with chemical restraints. No one cares. Unless they have insurance or medicare money, then they are traded like chips at a casino for profit.

After my numerous faxes to the White House about the death and destruction of the elderly, what happens? Read on.

https://shareblue.com/trump-gives-nursing-homes-shocking-green-light-to-abuse-elderly-to-point-of-death/

Trump gives nursing homes shocking green light to abuse elderly to point of death

Oliver Willis

–

December 26, 2017

The Trump administration has told nursing homes that they can feel free to abuse or neglect the elderly, even to the point of death, and see almost no repercussions for it.

A nursing home can abuse an elderly resident to the point of death and not be subject to a fine, thanks to the Trump administration.

Reacting to the demands of lobbyists, the Trump administration has struck down several regulations that have governed the nursing home industry. The New York Times reports that this now means several common citations that used to result in fines will either see reduced penalties or no penalties at all.

These citations have included “failing to protect residents from avoidable accidents, neglect, mistreatment and bedsores.” Americans can now know that their grandparents, parents, or great-grandparents can be neglected and abused without the government exercising oversight.

Toby Edelman, a senior attorney at the Center for Medicare Advocacy, told the Times, “They’ve pretty much emasculated enforcement, which was already weak.”

The fines, designed to prod nursing homes into treating elderly Americans with more care, respect, and dignity, were put in place by President Barack Obama and sought to make the institutions answerable to standards put together by Medicare.

Between 2013 and this year, 6,500 nursing homes — 4 out of every 10 — have been cited for serious violations. Under the Obama policies, two-thirds of those homes were fined.

In his eagerness to undo as many regulations as possible, regardless of consequence, Donald Trump has thrown those policies out the window after the lobbyists for companies that operate the homes got the ear of his administration. A memo from the Trump administration referred to these fines as penalizing a “one-time mistake.” Even if that “one-time mistake” killed someone’s grandmother.

The Times notes one nursing home where the failure to monitor and treat a patient’s wound led to a pain-medication pump slipping through a ruptured suture, protruding from her abdomen. Under the Obama rules, the nursing home at fault — Lincoln Manor in Illinois — was fined $282,954. Under Trump, the home where a person died because of neglect would be fined less than $21,000.

This sets up a perverse incentive system that tells nursing homes they can abuse and neglect human beings up to and including death and still be exempt from many, if not all, fines.

Callous treatment of the most vulnerable in society is abhorrent and cruel. But it’s just another day with Trump.

From the New York Times Article:

The Trump administration is scaling back the use of fines against nursing homes that harm residents or place them in grave risk of injury, part of a broader relaxation of regulations under the president.

The shift in the Medicare program’s penalty protocols was requested by the nursing home industry. The American Health Care Association, the industry’s main trade group, has complained that under President Barack Obama, federal inspectors focused excessively on catching wrongdoing rather than helping nursing homes improve.

“It is critical that we have relief,” Mark Parkinson, the group’s president, wrote in a letter to Mr. Trump in December 2016.

Since 2013, nearly 6,500 nursing homes — four of every 10 — have been cited at least once for a serious violation, federal records show. Medicare has fined two-thirds of those homes. Common citations include failing to protect residents from avoidable accidents, neglect, mistreatment and bedsores.

The new guidelines discourage regulators from levying fines in some situations, even when they have resulted in a resident’s death. The guidelines will also probably result in lower fines for many facilities.

The change in policy aligns with Mr. Trump’s promise to reduce bureaucracy, regulation and government intervention in business.

Dr. Kate Goodrich, director of clinical standards and quality at the Centers for Medicare and Medicaid Services, said in a statement that unnecessary regulation was the main concern that health care providers raised with officials.

“Rather than spending quality time with their patients, the providers are spending time complying with regulations that get in the way of caring for their patients and doesn’t increase the quality of care they provide,” Dr. Goodrich said.

But advocates for nursing-home residents say the revised penalties are weakening a valuable patient-safety tool.

“They’ve pretty much emasculated enforcement, which was already weak,” said Toby Edelman, a senior attorney at the Center for Medicare Advocacy.

Medicare has different ways of applying penalties. It can impose a specific fine for a particular violation. It can assess a fine for each day that a nursing home was in violation. Or it can deny payments for new admissions.

The average fine in recent years has been $33,453, but 531 nursing homes amassed combined federal fines above $100,000, records show. In 2016, Congress increased the fines to factor in several years of inflation that had not been accounted for previously.

The new rules have been instituted gradually throughout the year.

In October, the Centers for Medicare and Medicaid Services discouraged its regional offices from levying fines, even in the most serious health violations, if the error was a “one-time mistake.” The centers said that intentional disregard for residents’ health and safety or systemic errors should still merit fines.

A July memo from the centers discouraged the directors of state agencies that survey nursing homes from issuing daily fines for violations that began before an inspection, favoring one-time fines instead. Daily fines remain the recommended approach for major violations discovered during an inspection.

David Gifford, the American Health Care Association’s senior vice president for quality, said daily fines were intended to prompt quick remedies but were pointless when applied to past errors that had already been fixed by the time inspectors discovered them.

“What was happening is you were seeing massive fines accumulating because they were applying them on a per-day basis retrospectively,” Mr. Gifford said.

But the change means that some nursing homes could be sheltered from fines above the maximum per-instance fine of $20,965 even for egregious mistakes.

In September 2016, for instance, health inspectors faulted Lincoln Manor, a nursing home in Decatur, Ill., for failing to monitor and treat the wound of a patient whose implanted pain-medication pump gradually slipped over eight days through a ruptured suture and protruded from her abdomen. The patient died.

The Centers for Medicare and Medicaid Services fined Lincoln Manor $282,954, including $10,091 a day for 28 days, from the time the nursing home noticed the problem with the wound until supervisors had retrained nurses to avoid similar errors. An administrative law judge called the penalties “quite modest” given the “appalling” care.

The fines were issued before the new guidelines took effect; if the agency had issued a one-time fine, the maximum would have been less than $21,000.

Lincoln Manor closed in September. Its owner could not be reached for comment, and his lawyer did not respond to an interview request.

Advocates for nursing home residents say that relaxing penalties threatens to undo progress at deterring wrongdoing. Janet Wells, a consultant for California Advocates for Nursing Home Reform, said the changes come as “some egregious violations and injuries to residents are being penalized — finally — at a level that gets the industry’s attention and isn’t just the cost of doing business.”

In November, the Trump administration exempted nursing homes that violate eight new safety rules from penalties for 18 months. Homes must still follow the rules, which are intended, among other things, to reduce the overuse of psychotropic drugs and to ensure that every home has adequate resources to assist residents with major psychological problems.

https://tpc.googlesyndication.com/safeframe/1-0-29/html/container.html

In June, the Centers for Medicare and Medicaid Services rescinded another Obama administration action that banned nursing homes from pre-emptively requiring residents to submit to arbitration to settle disputes rather than going to court.

“We publish nearly 11,000 pages of regulation every year,” the agency’s administrator, Seema Verma, said in a speech in October. That paperwork is “taking doctors away from what matters most: patients.”

Janine Finck-Boyle, director of health regulations and policy at LeadingAge, a group of nonprofit nursing homes and other entities that care for older people, said the group’s members had been struggling to cope with regulations.

“If you’re a 50-bed rural facility out West or in the Dakotas,” she said, “you don’t have the resources to get everything done from A to Z.”

Jordan Rau is a senior correspondent for Kaiser Health News, a nonprofit news service covering health issues that is an editorially independent program of the Kaiser Family Foundation and not affiliated with Kaiser Permanente.

A version of this article appears in print on Dec. 24, 2017, on Page B1 of the New York edition with the headline: Nursing Home Industry Wins As Penalties Are Relaxed. Order Reprints | Today’s Paper | Subscribe

Trump Moves to Impede Consumer Lawsuits Against Nursing Homes

Aug. 18, 2017

Poor Patient Care at Many Nursing Homes Despite Stricter Oversight

July 5, 2017

Image

https://forbes.com/sites/adamandrzejewski/2018/07/27/follow-the-money-in-florida-34873-public-employees-with-100000-salaries-cost-taxpayers-5-5b/#587bda652ce5

Follow the Money in Florida: 34,873 Public Employees with $100,000+ Salaries Cost Taxpayers $5.5B

Adam AndrzejewskiContributori

Top 10 highly compensated small town and city administrators in Florida (FY2017).OPENTHEBOOKS

When our team of auditors at OpenTheBooks.com reviewed the most highly compensated employees at every level of government in Florida, we found more than 35,000 state and local government employees brought home six and seven-figure salaries, costing taxpayers $5.5 billion annually.

Since last year, the headcount of these high-compensated Florida government workers jumped by nearly 4,000 employees.

The list of high earners includes an airport director accepting retirement payments and a working salary; a city attorney making $436,918; a junior college president making $386,578; and a county administrator making $346,722. There are even 26 small-town, village, and city managers out-earning every governor of the 50 states.

Using our interactive mapping tool, quickly review (by zip code) the 34,873 Florida public employees earning $100,000+ each, costing taxpayers more than $5.5 billion annually. Just click a pin and scroll down to see the results rendered in the chart below the map.

Search all six-figure employees in Florida mapped at OpenTheBooks.com.OPENTHEBOOKS

To see all 2017 Florida state and local payroll data at OpenTheBooks.com, click here.

MORE FROM FORBES

Searching the map by zip code, here are a few examples of what you’ll uncover:

717 small-town, city, and village employees – including 26 municipal leaders out-earning every U.S. governor at $180,000. These managers include Ron Ferris (Palm Beach Gardens – $261,987); James Chisholm (Daytona Beach – $214,669); Christopher Russo (Sunny Isles Beach – $226,314); Alex Rey Panama (Miami Lakes – $189,800); Michael McNees (Melbourne – $184,085).
2,484 State of Florida employees – including $276,000 for Commissioner of Education Pamela Stewart; $218,925 each for Department of Children and Families Medical Executive Directors Josefina Baluga and Steve Brasington; and $199,999 for Department of Education Board of Governors Chancellor Marshall Criser.
3,195 teachers and school administrators – including chief academic officer Daniel Gohl ($196,001) in Broward County School District; minority achievement officer James Lawson ($181,120) in Orange County School District; and English and Journalism teacher James Johnson ($121,493) in St. Johns County School District.
13,305 college and university employees – The University of Florida paid out 3,234 six-figure salaries – the most of any university in the state. Their high earners included the Vice President of Health Affairs David Guzick ($1.2 million) and Director of the Graduate Tax Program Martin McMahon ($780,392).

Top 10 Florida employers paying six-figure salaries in FY2017.OPENTHEBOOKS

Taxpayer-Expensive Educators

Data revealed 3,195 Florida teachers and administrators earned $100,000+ incomes, costing taxpayers nearly $400 million last year.

Former Palm Beach County SD Superintendent Robert Avossa received the largest superintendent paycheck ($365,042). In February 2018, he resigned. The Palm Beach County School Board employed 359 six-figure educators for $41 million in 2017.
Miami-Dade SD Superintendent Alberto Carvalho was the second-highest-paid educator. In 2017, he pulled down $343,386. The Miami-Dade School Board paid $1.5 billion in total payroll during 2017 with 738 employees earning six-figures.
Public school employees across the state raked in six-figure paychecks including Duval County Superintendent Nikolai Vitti ($302,394); Orange County Superintendent Barbara Jenkins ($281,037); Pinellas County Superintendent Michael Grego ($273,509); Collier County Superintendent Kamela Patton ($230,640); Hillsborough County Superintendent Jeffrey Eakins ($225,000); Lee County School District Attorney Keith Martin ($198,281); and Sarasota County Assistant Superintendent Scott Lempe ($178,776).

Top 10 Florida School Boards paying six-figure salaries in FY2017.OPENTHEBOOKS

Public College and University Employees

Public colleges and universities in Florida paid 13,305 six and seven-figure salaries in 2017, costing taxpayers $2.5 billion. These salaries flowed to coaches, presidents, professors, and more.

Division I colleges and universities awarded huge salaries to athletic coaches. Florida Atlantic University’s (FAU) head football coach Lane Kiffin received $436,781. Even the FAU former Head Football Coach Charlie Partridge made $294,784 in 2017. Florida International University Head Football Coach Paul “Butch” Davis took home $737,931. While new Florida State University (FSU) Football Coach Willie Taggart will receive $5 million per year and UF Football Coach Dan Mullen makes $6 million per year, taxpayers fund just a small fraction of these salaries.

Highly compensated university presidents included John Hitt, University of Central Florida president, made $898,092. Former President of Florida A&M Elmira Mangum made $638,907 in 2017. Randy Avent, president and founder of Florida Polytechnic, received $478,850. Wilson Bradshaw of Florida Gulf Coast earned $425,823 – although he retired on June 30, 2017 – while his successor, Mike Martin, brought home $392,718.

Even junior colleges doled out huge paychecks. Sanford “Sandy” Shugart, Valencia Community College president, pulled in $386,576. Kenneth Atwater, president of Hillsborough Community College, made $324,617 and James Murdaugh, president of Tallahassee Community College, received $304,834.

Other highly-compensated university employees included University of South Florida Vice President of Alumni Relations and foundation CEO Joel Momberg ($897,279); Florida Atlantic University Medical Science Professor John Newcomer ($560,638); University of North Florida Dean Mark Tumeo ($550,841); and University of West Florida Provost George Ellenberg ($423,545).

Top 10 Florida universities paying six-figure salaries in FY2017.OPENTHEBOOKS

County Employees

Even county employees got in on the largess. For example, the Miami-Dade County Board of Commissioners pays 5,476 employees more than $100,000 each – that’s twice as many six-figure employees as the Florida state government. Additionally, Palm Beach County’s Board of Commissioners paid out 1,214 six-figure salaries.

County workers received huge compensation including Hillsborough County Administrator Mike Merrill ($273,600); Pinellas County Administrator Mark Woodard ($261,478); Volusia County Manager James Dinneen ($259,954); Manatee County Administrator Ed Hunzeker ($220,300); and Osceola County Manager Don Fisher ($215,830).
Law-enforcement officers including sheriffs, highway patrolmen and policemen pulled in large salaries. Palm Beach County Sherriff’s Department Chief Operating Officer George Forman made brought home $227,093. At the Broward County Sheriff’s Department, 1,516 employees made six-figure salaries, including Sheriff Scott Israel, who made $189,070.
Even solid waste managers make a lot, including Palm Beach County Solid Waste Authority Executive Director Mark Hammond ($205,019); Miami-Dade County Water and Sewer System Deputy Director L.D. Yoder earned $208,593; and Hillsborough County Solid Waste Services Director Kimberly Byer ($143,239).

Not even resignations and retirements can stop some public employees from receiving huge payouts. Consider two examples:

Bruce Pelly, Palm Beach County’s airport director, pulled in $236,768 in 2017 on top of at least $70,968 in annual retirement checks. Pelly worked for more than 20 years before “retiring” in 2010 to collect a $304,000 lump sum payout – plus his monthly annuity checks. Just 30 days later, he was rehired in the exact same position.

Richard Anderson retired from his position as Apopka City Manager in 2014 with $510,296 in final-year compensation on top of two pensions he was able to collect. Then, the city rehired him as a lobbyist with a two-year contract for another $528,000.

Florida was ranked the number one fiscally responsible state in 2017. However, with public higher education employees bringing home six and seven figures, numerous small-time municipal leaders earning more annually than state governor, and a history of high earners accepting pensions and active paychecks at the same time, perhaps its practices are worth reevaluating.

Note: Only two of Florida’s 477 pay and pension systems were reviewed for this column: Florida People First Personnel Information System and Florida State Management Services Retirement System. All data is made available under Florida transparency laws. Together, these two systems have nearly 800,000 public employees and are estimated to cover two of every three FL public employees.

Furthermore, we reached out to many of the government entities mentioned in the piece and none have responded with comments. Anyone mentioned in the piece wanting to add context or comment should contact the author Adam Andrzejewski.

Adam Andrzejewski (say: Angie-eff-ski) is the CEO and Founder of OpenTheBooks.com – one of the largest private databases of government spending in the world. Our mission is to post “every dime, online” of all local, state, and federal government spending at OpenTheBooks.com …

http://apps.apa.org/commentcentral2/Default.aspx?site=52

When you visit this link, please be aware that it times out in 20 minutes so you might want to type up your comments first and then cut and paste them into the browser window.

You may wish to comment: 1) therapists should be trained and certified in the area of Custody Evaluations; 2)there must be set in forth strict standards as to how long the professional must meet with the parties, their children, teachers, the family’s health care professionals and anyone licensed who spends more than an hour or two during each year observing and/or working with the children and/or family in the area of heath, welfare and behavior; 3) the therapist should be familiar in the area of parental alienation; 4) the therapist should subject to online evaluation by the parents who have used the therapist in the past; 5) a budget should be set in advance and provided to both the court and the parties; 6) the therapist/evaluator should be tested for psychopathy with a PET brain scan as should the parents.

anything else?

Please make additional suggestions in the comments.

Joanne

Time to fight back

The amount of money that is garnered from the felonies of ELDER CLEANSING/HUMAN TRAFFICKING in thhe Elderly is amazing. Philip Esformes is charged by the Government in stealing a billion dollars from Medicare. He is small potatoes. Others have stolen much more and continue to do so. Health Care programs are deemed to failure because of the booty to be obtained and the POLITICAL and JUDICIAL elite to be garnered.

Your first step is to prepare an accurate, clear and concise timeline so that any honest investigator looking at your claim can honestly evaluate it and based an HONEST INVESTIGATION thereupon. When you have the documents put together in an organized and cogent form make an appointment with the AG’s office and the FBI and present your case.

There are no short cuts. The corruption is systemic! It is so deeply rooted in our government that the mission of the taskforce is almost impossible. Few in law enforcement want to get involved as 1) they will make lasting enemies – who could do them harm, and 2) they are signing up for an impossible work schedule. Here in Illinois the corruption is so deep that the administrator of the IARDC (attorney disciplinary commission) stated with a straight face in the JoAnne Denison case that her blog exposing JUDICIAL CORRUPTION was akin to yelling fire in a crowded theater. The Illinois Supreme Court agreed and Attorney Denison was suspended for 3 years despite posting only the unvarnished truth about Illinois Probate Court operations. Apparently the ABA agreed as they and the 2nd oldest profession were actively mute!

Ken Ditkowsky

www.ditkowskylawoffice.com

On ‎Thursday‎, ‎July‎ ‎26‎, ‎2018‎ ‎08‎:‎49‎:‎55‎ ‎AM‎ ‎CDT, Dede Martin <denimarti2003@yahoo.com> wrote:

On Wednesday, July 25, 2018, 10:47:39 PM EDT, kenneth ditkowsky <kenditkowsky@yahoo.com> wrote:

You must ask the Court for time to find new counsel – also ask the Court for a referral This is a CIVIL RIGHTS case. For the record, you have rights in the life of you mother and other next of kin. No public official has a right to forfeit those rights. You are entitled to personal damages and punitive damages. If is obvious that the defendants have been successful in intimidating your lawyer with their sanction motions. Inexperienced and young attorneys are prone to such ethically challenged conduct and worry that the Court will bankrupt them.

NB. Your first priority to create an annotated TIME LINE. The time line should be clear concise statements backed up with whatever evidence you have to substantiate your position. This should be made available to the TASK FORCE at your earliest convenience.

This is not a game – it is a very serious matter as from what you described the worse form of human trafficking was performed on your mother. Federal Health care funds obviously were accessed and if the pattern was followed serious felonies occurred.

Ken Ditkowsky.ditkowskylawoffice.com

Finally the NEW YORKER recognized that guardian ships are in too many cases akin to Gulags – with a profit motive. (The usual Gulag is political – however, it is appearing that the level of corruption associated with the criminal enterprise that a political motive may also exist)

Why protection of the elderly from the abuse of guardianships has not been a high priority is not a mystery! The money to be garnered is outrageous! (Sykes 3 million, Gore 1.5 million, Tyler 8 million***** plus MEDICARE FRAUD – plus sur charge of 700% AND the 18 USCA 371 co conspirators being ignored by the STate and Federal Taxing authorities).

Under ADA and the Federal and State Constitution many of these guardianships are patently UNCONSTITUTIONAL = BUT the fraud is way too profitable. (Philip Esformes was indicted for stealing a billion dollars – here in Illinois the GAL who allegedly orchestrated the Gore Estate, went down to Florida and bilked the F Estate out of million dollars pursuant to a settlement with the Florida Attorney General. Also in Illinois, Robert Jaycox went to his ultimate reward after the public guardian was unable to obtain a guardianship through the usual channels –He was then fed in a prone position, was rewarded with Aspirated Pneumonia and died. Cremation followed “post haste” and the good old USA paid!

On Monday, October 2, 2017, 9:37:43 PM CDT, j. d. <jdit@aol.com> wrote:

For years, Rudy North woke up at 9 a.m. and read the Las Vegas Review-Journal while eating a piece of toast. Then he read a novel—he liked James Patterson and Clive Cussler—or, if he was feeling more ambitious, Freud. On scraps of paper and legal notepads, he jotted down thoughts sparked by his reading. “Deep below the rational part of our brain is an underground ocean where strange things swim,” he wrote on one notepad. On another, “Life: the longer it cooks, the better it tastes.”

Rennie, his wife of fifty-seven years, was slower to rise. She was recovering from lymphoma and suffered from neuropathy so severe that her legs felt like sausages. Each morning, she spent nearly an hour in the bathroom applying makeup and lotions, the same brands she’d used for forty years. She always emerged wearing pale-pink lipstick. Rudy, who was prone to grandiosity, liked to refer to her as “my amour.”
On the Friday before Labor Day, 2013, the Norths had just finished their toast when a nurse, who visited five times a week to help Rennie bathe and dress, came to their house, in Sun City Aliante, an “active adult” community in Las Vegas. They had moved there in 2005, when Rudy, a retired consultant for broadcasters, was sixty-eight and Rennie was sixty-six. They took pride in their view of the golf course, though neither of them played golf.
Rudy chatted with the nurse in the kitchen for twenty minutes, joking about marriage and laundry, until there was a knock at the door. A stocky woman with shiny black hair introduced herself as April Parks, the owner of the company A Private Professional Guardian. She was accompanied by three colleagues, who didn’t give their names. Parks told the Norths that she had an order from the Clark County Family Court to “remove” them from their home. She would be taking them to an assisted-living facility. “Go and gather your things,” she said.
Rennie began crying. “This is my home,” she said.

One of Parks’s colleagues said that if the Norths didn’t comply he would call the police. Rudy remembers thinking, You’re going to put my wife and me in jail for this? But he felt too confused to argue.
Parks drove a Pontiac G-6 convertible with a license plate that read “crtgrdn,” for “court guardian.” In the past twelve years, she had been a guardian for some four hundred wards of the court. Owing to age or disability, they had been deemed incompetent, a legal term that describes those who are unable to make reasoned choices about their lives or their property. As their guardian, Parks had the authority to manage their assets, and to choose where they lived, whom they associated with, and what medical treatment they received. They lost nearly all their civil rights.
Without realizing it, the Norths had become temporary wards of the court. Parks had filed an emergency ex-parte petition, which provides an exception to the rule that both parties must be notified of any argument before a judge. She had alleged that the Norths posed a “substantial risk for mismanagement of medications, financial loss and physical harm.” She submitted a brief letter from a physician’s assistant, whom Rennie had seen once, stating that “the patient’s husband can no longer effectively take care of the patient at home as his dementia is progressing.” She also submitted a letter from one of Rudy’s doctors, who described him as “confused and agitated.”

Rudy and Rennie had not undergone any cognitive assessments. They had never received a diagnosis of dementia. In addition to Freud, Rudy was working his way through Nietzsche and Plato. Rennie read romance novels.
Parks told the Norths that if they didn’t come willingly an ambulance would take them to the facility, a place she described as a “respite.” Still crying, Rennie put cosmetics and some clothes into a suitcase. She packed so quickly that she forgot her cell phone and Rudy’s hearing aid. After thirty-five minutes, Parks’s assistant led the Norths to her car. When a neighbor asked what was happening, Rudy told him, “We’ll just be gone for a little bit.” He was too proud to draw attention to their predicament. “Just think of it as a mini-vacation,” he told Rennie.

After the Norths left, Parks walked through the house with Cindy Breck, the owner of Caring Transitions, a company that relocates seniors and sells their belongings at estate sales. Breck and Parks had a routine. “We open drawers,” Parks said at a deposition. “We look in closets. We pull out boxes, anything that would store—that would keep paperwork, would keep valuables.” She took a pocket watch, birth certificates, insurance policies, and several collectible coins.

The Norths’ daughter, Julie Belshe, came to visit later that afternoon. A fifty-three-year-old mother of three sons, she and her husband run a small business designing and constructing pools. She lived ten miles away and visited her parents nearly every day, often taking them to her youngest son’s football games. She was her parents’ only living child; her brother and sister had died.

She knocked on the front door several times and then tried to push the door open, but it was locked. She was surprised to see the kitchen window closed; her parents always left it slightly open. She drove to the Sun City Aliante clubhouse, where her parents sometimes drank coffee. When she couldn’t find them there, she thought that perhaps they had gone on an errand together—the farthest they usually drove was to Costco. But, when she returned to the house, it was still empty.

That weekend, she called her parents several times. She also called two hospitals to see if they had been in an accident. She called their landlord, too, and he agreed to visit the house. He reported that there were no signs of them. She told her husband, “I think someone kidnapped my parents.”

On the Tuesday after Labor Day, she drove to the house again and found a note taped to the door: “In case of emergency, contact guardian April Parks.” Belshe dialled the number. Parks, who had a brisk, girlish way of speaking, told Belshe that her parents had been taken to Lakeview Terrace, an assisted-living facility in Boulder City, nine miles from the Arizona border. She assured Belshe that the staff there would take care of all their needs.

“You can’t just walk into somebody’s home and take them!” Belshe told her.

Parks responded calmly, “It’s legal. It’s legal.”

Guardianship derives from the state’s parens patriae power, its duty to act as a parent for those considered too vulnerable to care for themselves. “The King shall have the custody of the lands of natural fools, taking the profits of them without waste or destruction, and shall find them their necessaries,” reads the English statute De Prerogative Regis, from 1324. The law was imported to the colonies—guardianship is still controlled by state, not federal, law—and has remained largely intact for the past eight hundred years. It establishes a relationship between ward and guardian that is rooted in trust.

In the United States, a million and a half adults are under the care of guardians, either family members or professionals, who control some two hundred and seventy-three billion dollars in assets, according to an auditor for the guardianship fraud program in Palm Beach County. Little is known about the outcome of these arrangements, because states do not keep complete figures on guardianship cases—statutes vary widely—and, in most jurisdictions, the court records are sealed. A Government Accountability report from 2010 said, “We could not locate a single Web site, federal agency, state or local entity, or any other organization that compiles comprehensive information on this issue.” A study published this year by the American Bar Association found that “an unknown number of adults languish under guardianship” when they no longer need it, or never did. The authors wrote that “guardianship is generally “permanent, leaving no way out—‘until death do us part.’ ”

When the Norths were removed from their home, they joined nearly nine thousand adult wards in the Las Vegas Valley. In the past twenty years, the city has promoted itself as a retirement paradise. Attracted by the state’s low taxes and a dry, sunny climate, elderly people leave their families behind to resettle in newly constructed senior communities. “The whole town sparkled, pulling older people in with the prospect of the American Dream at a reasonable price,” a former real-estate agent named Terry Williams told me. Roughly thirty per cent of the people who move to Las Vegas are senior citizens, and the number of Nevadans older than eighty-five has risen by nearly eighty per cent in the past decade.

In Nevada, as in many states, anyone can become a guardian by taking a course, as long as he or she has not been convicted of a felony or recently declared bankruptcy. Elizabeth Brickfield, a Las Vegas lawyer who has worked in guardianship law for twenty years, said that about fifteen years ago, as the state’s elderly population swelled, “all these private guardians started arriving, and the docket exploded. The court became a factory.”

Pamela Teaster, the director of the Center for Gerontology at Virginia Tech and one of the few scholars in the country who study guardianship, told me that, though most guardians assume their duties for good reasons, the guardianship system is “a morass, a total mess.” She said, “It is unconscionable that we don’t have any data, when you think about the vast power given to a guardian. It is one of society’s most drastic interventions.”

After talking to Parks, Belshe drove forty miles to Lakeview Terrace, a complex of stucco buildings designed to look like a hacienda. She found her parents in a small room with a kitchenette and a window overlooking the parking lot. Rennie was in a wheelchair beside the bed, and Rudy was curled up on a love seat in the fetal position. There was no phone in the room. Medical-alert buttons were strung around their necks. “They were like two lost children,” Belshe said.

She asked her parents who Parks was and where she could find the court order, but, she said, “they were overwhelmed and humiliated, and they didn’t know what was going on.” They had no idea how or why Parks had targeted them as wards. Belshe was struck by their passive acceptance. “It was like they had Stockholm syndrome or something,” she told me.
Belshe acknowledged that her parents needed a few hours of help each day, but she had never questioned their ability to live alone. “They always kept their house really nice and clean, like a museum,” she said. Although Rudy’s medical records showed that he occasionally had “staring spells,” all his medical-progress notes from 2013 described him as alert and oriented. He did most of the couple’s cooking and shopping, because Rennie, though lucid, was in so much pain that she rarely left the house. Belshe sometimes worried that her father inadvertently encouraged her mother to be docile: “She’s a very smart woman, though she sometimes acts like she’s not. I have to tell her, ‘That’s not cute, Mom.’ ”
When Belshe called Parks to ask for the court order, Parks told her that she was part of the “sandwich generation,” and that it would be too overwhelming for her to continue to care for her children and her parents at the same time. Parks billed her wards’ estates for each hour that she spent on their case; the court placed no limits on guardians’ fees, as long as they appeared “reasonable.” Later, when Belshe called again to express her anger, Parks charged the Norths twenty-four dollars for the eight-minute conversation. “I could not understand what the purpose of the call was other than she wanted me to know they had rights,” Parks wrote in a detailed invoice. “I terminated the phone call as she was very hostile and angry.”

A month after removing the Norths from their house, Parks petitioned to make the guardianship permanent. She was represented by an attorney who was paid four hundred dollars an hour by the Norths’ estate. A hearing was held at Clark County Family Court.

The Clark County guardianship commissioner, a lawyer named Jon Norheim, has presided over nearly all the guardianship cases in the county since 2005. He works under the supervision of a judge, but his orders have the weight of a formal ruling. Norheim awarded a guardianship to Parks, on average, nearly once a week. She had up to a hundred wards at a time. “I love April Parks,” he said at one hearing, describing her and two other professional guardians, who frequently appeared in his courtroom, as “wonderful, good-hearted, social-worker types.”

Norheim’s court perpetuated a cold, unsentimental view of family relations: the ingredients for a good life seemed to have little to do with one’s children and siblings. He often dismissed the objections of relatives, telling them that his only concern was the best interest of the wards, which he seemed to view in a social vacuum. When siblings fought over who would be guardian, Norheim typically ordered a neutral professional to assume control, even when this isolated the wards from their families. Comment: So much for the RULE OF LAW!

Rudy had assured Belshe that he would protest the guardianship, but, like most wards in the country, Rudy and Rennie were not represented by counsel. As Rudy stood before the commissioner, he convinced himself that guardianship offered him and Rennie a lifetime of care without being a burden to anyone they loved. He told Norheim, “The issue really is her longevity—what suits her.” Belshe, who sat in the courtroom, said, “I was shaking my head. No, no, no—don’t do that!” Rennie was silent.

Norheim ordered that the Norths become permanent wards of the court. “Chances are, I’ll probably never see you folks again; you’ll work everything out,” he said, laughing. “I very rarely see people after the initial time in court.” The hearing lasted ten minutes.

Comment: so much for the victims assets!

The following month, Even Tide Life Transitions, a company that Parks often hired, sold most of the Norths’ belongings. “The general condition of this inventory is good,” an appraiser wrote. Two lithographs by Renoir were priced at thirty-eight hundred dollars, and a glass cocktail table (“Client states that it is a Brancusi design”) was twelve hundred and fifty dollars. The Norths also had several pastel drawings by their son, Randy, who died in a motorcycle accident at the age of thirty-two, as well as Kachina dolls, a Bose radio, a Dyson vacuum cleaner, a Peruvian tapestry, a motion-step exerciser, a LeRoy Neiman sketch of a bar in Dublin, and two dozen pairs of Clarke shoes. According to Parks’s calculations, the Norths had roughly fifty thousand dollars. Parks transferred their savings, held at the Bank of America, to an account in her name.

Rennie repeatedly asked for her son’s drawings, and for the family photographs on her refrigerator. Rudy pined for his car, a midnight-blue 2010 Chrysler, which came to symbolize the life he had lost. He missed the routine interactions that driving had allowed him. “Everybody at the pharmacy was my buddy,” he said. Now he and Rennie felt like exiles. Rudy said, “They kept telling me, ‘Oh, you don’t have to worry: your car is fine, and this and that.’ ” A month later, he said, “they finally told me, ‘Actually, we sold your car.’ I said, ‘What in the hell did you sell it for?’ ” It was bought for less than eight thousand dollars, a price that Rudy considered insulting.

Rudy lingered in the dining room after eating breakfast each morning, chatting with other residents of Lakeview Terrace. He soon discovered that ten other wards of April Parks lived there. His next-door neighbor, Adolfo Gonzalez, a short, bald seventy-one-year-old who had worked as a maître d’ at the MGM Grand Las Vegas, had become Parks’s ward at a hearing that lasted a minute and thirty-one seconds.

Gonzalez, who had roughly three hundred and fifty thousand dollars in assets, urged Rudy not to accept the nurse’s medications. “If you take the pills, they’ll make sure you don’t make it to court,” he said. Gonzalez had been prescribed the antipsychotic medications Risperdal and Depakote, which he hid in the side of his mouth without swallowing. He wanted to remain vigilant. He often spoke of a Salvador Dali painting that had been lost when Parks took over his life. Once, she charged him two hundred and ten dollars for a visit in which, according to her invoice, he expressed that “he feels like a prisoner.”

Rudy was so distressed by his conversations with Gonzalez that he asked to see a psychologist. “I thought maybe he’d give me some sort of objective learning as to what I was going through,” he said. “I wanted to ask basic questions, like What the hell is going on?” Rudy didn’t find the session illuminating, but he felt a little boost to his self-esteem when the psychologist asked that he return for a second appointment. “I guess he found me terribly charming,” he told me.

Rudy liked to fantasize about an alternative life as a psychoanalyst, and he tried to befriend the wards who seemed especially hopeless. “Loneliness is a physical pain that hurts all over,” he wrote in his notebook. He bought a pharmaceutical encyclopedia and advised the other wards about medications they’d been prescribed. He also ran for president of the residents, promising that under his leadership the kitchen would no longer advertise canned food as homemade. (He lost—he’s not sure if anyone besides Rennie voted for him—but he did win a seat on the residents’ council.) comment: How can such a situation exist in America?

He was particularly concerned about a ward of Parks’s named Marlene Homer, a seventy-year-old woman who had been a professor. “Now she was almost hiding behind the pillars,” Rudy said. “She was so obsequious. She was, like, ‘Run me over. Run me over.’ ” She’d become a ward in 2012, after Parks told the court, “She has admitted to strange thoughts, depression, and doing things she can’t explain.” On a certificate submitted to the court, an internist had checked a box indicating that Homer was “unable to attend the guardianship court hearing because______,” but he didn’t fill in a reason.

The Norths could guess which residents were Parks’s wards by the way they were dressed. Gonzalez wore the same shirt to dinner nearly every day. “Forgive me,” he told the others at his table. When a friend tried to take him shopping, Parks prevented the excursion because she didn’t know the friend. Rennie had also tried to get more clothes. “I reminded ward that she has plenty of clothing in her closet,” Parks wrote. “I let her know that they are on a tight budget.” The Norths’ estate was charged a hundred and eighty dollars for the conversation.

Another resident, Barbara Neely, a fifty-five-year-old with schizophrenia, repeatedly asked Parks to buy her outfits for job interviews. She was applying for a position with the Department of Education. After Neely’s third week at Lakeview Terrace, Parks’s assistant sent Parks a text. “Can you see Barbara Neely anytime this week?” she wrote. “She has questions on the guardianship and how she can get out of it.” Parks responded, “I can and she can’t.” Neely had been in the process of selling her house, for a hundred and sixty-eight thousand dollars, when Parks became her guardian and took charge of the sale.

The rationale for the guardianship of Norbert Wilkening, who lived on the bottom floor of the facility, in the memory-care ward, for people with dementia (“the snake pit,” Rudy called it), was also murky. Parks’s office manager, who advertised himself as a “Qualified Dementia Care Specialist”—a credential acquired through video training sessions—had given Wilkening a “Mini-Mental State Examination,” a list of eleven questions and tasks, including naming as many animals as possible in a minute. Wilkening had failed. His daughter, Amy, told me, “I didn’t see anything that was happening to him other than a regular getting-older process, but when I was informed by all these people that he had all these problems I was, like, Well, maybe I’m just in denial. I’m not a professional.” She said that Parks was “so highly touted. By herself, by the social workers, by the judge, by everyone that knew her.”

At a hearing, when Amy complained to Norheim that Parks didn’t have time for her father, he replied, “Yeah, she’s an industry at this point.”

As Belshe spoke to more wards and their families, she began to realize that Lakeview Terrace was not the only place where wards were lodged, and that Parks was not the only guardian removing people from their homes for what appeared to be superficial reasons. Hundreds of cases followed the same pattern. It had become routine for guardians in Clark County to petition for temporary guardianship on an ex-parte basis. They told the court that they had to intervene immediately because the ward faced a medical emergency that was only vaguely described: he or she was demented or disoriented, and at risk of exploitation or abuse. The guardians attached a brief physician’s certificate that contained minimal details and often stated that the ward was too incapacitated to attend a court hearing. Debra Bookout, an attorney at the Legal Aid Center of Southern Nevada, told me, “When a hospital or rehab facility needs to free up a bed, or when the patient is not paying his bills, some doctors get sloppy, and they will sign anything.” A recent study conducted by Hunter College found that a quarter of guardianship petitions in New York were brought by nursing homes and hospitals, sometimes as a means of collecting on overdue bills.

It often took several days for relatives to realize what had happened. When they tried to contest the guardianship or become guardians themselves, they were dismissed as unsuitable, and disparaged in court records as being neglectful, or as drug addicts, gamblers, and exploiters. (Belshe was described by Parks as a “reported addict” who “has no contact with the proposed ward,” an allegation that Belshe didn’t see until it was too late to challenge.) Family who lived out of state were disqualified from serving as guardians, because the law prohibited the appointment of anyone who didn’t live in Nevada.

Once the court approved the guardianship, the wards were often removed from their homes, which were eventually sold. Terry Williams, whose father’s estate was taken over by strangers even though he’d named her the executor of his will, has spent years combing through guardianship, probate, and real-estate records in Clark County. “I kept researching, because I was so fascinated that these people could literally take over the lives and assets of people under color of law, in less than ten minutes, and nobody was asking questions,” she told me. “These people spent their lives accumulating wealth and, in a blink of an eye, it was someone else’s.”

Williams has reviewed hundreds of cases involving Jared Shafer, who is considered the godfather of guardians in Nevada. In the records room of the courthouse, she was afraid to say Shafer’s name out loud. In the course of his thirty-five-year career, Shafer has assumed control of more than three thousand wards and estates and trained a generation of guardians. In 1979, he became the county’s public administrator, handling the estates of people who had no relatives in Nevada, as well as the public guardian, serving wards when no family members or private guardians were available. In 2003, he left government and founded his own private guardianship and fiduciary business; he transferred the number of his government-issued phone to himself.
Williams took records from Shafer’s and other guardians’ cases to the Las Vegas police department several times. She tried to explain, she said, that “this is a racketeering operation that is fee-based. There’s no brown paper bag handed off in an alley. The payoff is the right to bill the estate.” The department repeatedly told her that it was a civil issue, and refused to take a report. In 2006, she submitted a typed statement, listing twenty-three statutes that she thought had been violated, but an officer wrote in the top right corner, “not a police matter.” Adam Woodrum, an estate lawyer in Las Vegas, told me that he’s worked with several wards and their families who have brought their complaints to the police. “They can’t even get their foot in the door,” he said.

Acting as her own attorney, Williams filed a racketeering suit in federal court against Shafer and the lawyers who represented him. At a hearing before the United States District Court of Central California in 2009, she told the judge, “They are trumping up ways and means to deem people incompetent and take their assets.” The case was dismissed. “The scheme is ingenious,” she told me. “How do you come up with a crime that literally none of the victims can articulate without sounding like they’re nuts? The same insane allegations keep surfacing from people who don’t know each other.”

In 2002, in a petition to the Clark County District Court, a fifty-seven-year-old man complained that his mother had lost her constitutional rights because her kitchen was understocked and a few bills hadn’t been paid. The house they shared was then placed on the market. The son wrote, “If the only showing necessary to sell the home right out from under someone is that their ‘estate’ would benefit, then no house in Clark County is safe, nor any homeowner.” Under the guise of benevolent paternalism, guardians seemed to be creating a kind of capitalist dystopia: people’s quality of life was being destroyed in order to maximize their capital.

When Concetta Mormon, a wealthy woman who owned a Montessori school, became Shafer’s ward because she had aphasia, Shafer sold the school midyear, even though students were enrolled. At a hearing after the sale, Mormon’s daughter, Victoria Cloutier, constantly spoke out of turn. The judge, Robert Lueck, ordered that she be handcuffed and placed in a holding cell while the hearing continued. Two hours later, when Cloutier was allowed to return for the conclusion, the judge told her that she had thirty days in which to vacate her mother’s house. If she didn’t leave, she would be evicted and her belongings would be taken to Goodwill.

The opinions of wards were also disregarded. In 2010, Guadalupe Olvera, a ninety-year-old veteran of the Second World War, repeatedly asked that his daughter and not Shafer be appointed his guardian. “The ward is not to go to court,” Shafer instructed his assistants. When Olvera was finally permitted to attend a hearing, nearly a year after becoming a ward, he expressed his desire to live with his daughter in California, rather than under Shafer’s care. “Why is everybody against that?” he asked Norheim. “I don’t need that man.” Although Nevada’s guardianship law requires that courts favor relatives over professionals, Norheim continued the guardianship, saying, “The priority ship sailed.”

When Olvera’s daughter eventually defied the court’s orders and took her father to live at her seaside home in Northern California, Norheim’s supervisor, Judge Charles Hoskin, issued an arrest warrant for her “immediate arrest and incarceration” without bail. The warrant was for contempt of court, but Norheim said at least five times from the bench that she had “kidnapped” Olvera. At a hearing, Norheim acknowledged that he wasn’t able to send an officer across state lines to arrest the daughter. Shafer said, “Maybe I can.”

Shafer held so much sway in the courtroom that, in 2013, when an attorney complained that the bank account of a ward named Kristina Berger had “no money left and no records to explain where it went,” Shafer told Norheim, “Close the courtroom.” Norheim immediately complied. A dozen people in attendance were forced to leave.

One of Shafer’s former bookkeepers, Lisa Clifton, who was hired in 2012, told me that Shafer used to brag about his political connections, saying, “I wrote the laws.” In 1995, he persuaded the Nevada Senate Committee on Government Affairs to write a bill that allowed the county to receive interest on money that the public guardian invested. “This is what I want you to put in the statute, and I will tell you that you will get a rousing hand from a couple of judges who practice our probate,” he said. At another hearing, he asked the committee to write an amendment permitting public guardians to take control of people’s property in five days, without a court order. “This bill is not ‘Big Brother’ if you trust the person who is doing the job,” he said. (After a senator expressed concern that the law allowed “intervention into somebody’s life without establishing some sort of reason why you are doing it,” the committee declined to recommend it.)

Clifton observed that Shafer almost always took a cynical view of family members: they were never motivated by love or duty, only by avarice. “ ‘They just want the money’—that was his answer to everything,” she told me. “And I’m thinking to myself, Well, when family members die they pass it down to their children. Isn’t that just the normal progression of things?”
After a few months on the job, Clifton was asked to work as a guardian, substituting for an absent employee, though she had never been trained. Her first assignment was to supervise a visit with a man named Alvin Passer, who was dying in the memory-care unit of a nursing home. His partner of eight years, Olive Manoli, was permitted a brief visit to say goodbye. Her visits had been restricted by Shafer—his lawyer told the court that Passer became “agitated and sexually aggressive” in her presence—and she hadn’t seen Passer in months. In a futile attempt to persuade the court to allow her to be with him, Manoli had submitted a collection of love letters, as well as notes from ten people describing her desire to care for Passer for the rest of his life. “I was absolutely appalled,” Clifton said. “She was this very sweet lady, and I said, ‘Go in there and spend as much time with him as you want.’ Tears were rolling down her cheeks.”
The family seemed to have suffered a form of court-sanctioned gaslighting. Passer’s daughter, Joyce, a psychiatric nurse who specialized in geriatrics, had been abruptly removed as her father’s co-guardian, because she appeared “unwilling or (more likely) unable to conduct herself rationally in the Ward’s best interests,” according to motions filed by one of Shafer’s attorneys.
She and Manoli had begged Norheim not to appoint Shafer as guardian. “Sir, he’s abusive,” their lawyer said in court.
“He’s as good as we got, and I trust him completely,” Norheim responded.
Joyce Passer was so confused by the situation that, she said, “I thought I was crazy.” Then she received a call from a blocked number. It was Terry Williams, who did not reveal her identity. She had put together a list of a half-dozen family members who she felt were “ready to receive some kind of verbal support.” She told Passer, “Look, you are not nuts. This is real. Everything you are thinking is true. This has been going on for years.”

During Rennie North’s first year at Lakeview Terrace, she gained sixty pounds. Parks had switched the Norths’ insurance, for reasons she never explained, and Rennie began seeing new doctors, who prescribed Valium, Prozac, the sedative Temazepam, Oxycodone, and Fentanyl. The doses steadily increased. Rudy, who had hip pain, was prescribed Oxycodone and Valium. When he sat down to read, the sentences floated past his eyes or appeared in duplicate. “Ward seemed very tired and his eyes were glassy,” Parks wrote in an invoice. Comment – here is your oxioid problem – and American health care pays for it!

Belshe found it increasingly hard to communicate with her parents, who napped for much of the day. “They were being overmedicated to the point where they weren’t really there,” she said. The Norths’ grandsons, who used to see them every week, rarely visited. “It was degrading for them to see us so degraded,” Rudy said. Parks noticed that Rennie was acting helpless, and urged her to “try harder to be more motivated and not be so dependent on others.” Rudy and Rennie began going to Sunday church services at the facility, even though they were Jewish. Rudy was heartened by what he heard in the pastor’s message: “Don’t give up. God will help you get out of here.” He began telling people, “We are living the life of Job.”

At the end of 2014, Lakeview Terrace hired a new director, Julie Liebo, who resisted Parks’s orders that medical information about wards be kept from their families. Liebo told me, “The families were devastated that they couldn’t know if the residents were in surgery or hear anything about their health. They didn’t understand why they’d been taken out of the picture. They’d ask, ‘Can you just tell me if she’s alive?’ ” Liebo tried to comply with the rules, because she didn’t want to violate medical-privacy laws; as guardian, Parks was entitled to choose what was disclosed. Once, though, Liebo took pity on the sister of an eighty-year-old ward named Dorothy Smith, who was mourning a dog that Parks had given away, and told her that Smith was stable. Liebo said that Parks, who was by then the secretary of the Nevada Guardianship Association, called her immediately. “She threatened my license and said she could have me arrested,” Liebo told me.

After Liebo arrived, Parks began removing wards from Lakeview Terrace with less than a day’s notice. A woman named Linda Phillips, who had dementia, was told that she was going to the beauty salon. She never returned. Marlene Homer, the ward whose ailments were depression and “strange thoughts,” was taken away in a van, screaming. Liebo had asked the state ombudsman to come to the facility and stop the removals, but nothing could be done. “We stood there completely helpless,” Liebo said. “We had no idea where they were going.” Liebo said that other wards asked her if they would be next.

Liebo alerted the compliance officer for the Clark County Family Court that Parks was removing residents “without any concern for them and their choice to stay here.” She also reported her complaints to the police, the Department of Health Services, the Bureau of Health Care, and Nevada Adult Protective Services. She said each agency told her that it didn’t have the authority or the jurisdiction to intervene.

At the beginning of 2015, Parks told the Norths that they would be leaving Lakeview Terrace. “Finances are low and the move is out of our control,” Parks wrote. It was all arranged so quickly that, Rudy said, “we didn’t have time to say goodbye to people we’d been eating with for seventeen months.” Parks arranged for Caring Transitions to move them to the Wentworth, a less expensive assisted-living facility. Liebo said that, the night before the move, Rudy began “shouting about the Holocaust, that this was like being in Nazi Germany.” Liebo didn’t think the reference was entirely misguided. “He reverted to a point where he had no rights as a human being,” she said. “He was no longer the caregiver, the man, the husband—all of the things that gave his life meaning.” Liebo also didn’t understand why Belshe had been marginalized. “She seemed like she had a great relationship with her parents,” she said.

Belshe showed up at 9 a.m. to help her parents with the move, but when she arrived Parks’s assistant, Heidi Kramer, told her that her parents had already left. Belshe “emotionally crashed,” as Liebo put it. She yelled that her parents didn’t even wake up until nine or later—what was the rush? In an invoice, Kramer wrote that Belshe “began to yell and scream, her behavior was out of control, she was taking pictures and yelling, ‘April Parks is a thief.’ ” Kramer called the police. Liebo remembers that an officer “looked at Julie Belshe and told her she had no rights, and she didn’t.”
Belshe cried as she drove to the Wentworth, in Las Vegas. When she arrived, Parks was there, and refused to let her see her parents. Parks wrote, “I told her that she was too distraught to see her parents, and that she needed to leave.” Belshe wouldn’t, so Parks asked the receptionist to call the police. When the police arrived, Belshe told them, “I just want to hug my parents and make sure they’re O.K.” An officer handed her a citation for trespassing, saying that if she returned to the facility she would be arrested.

Parks wrote that the Norths were “very happy with the new room and thanked us several times,” but Rudy remembers feeling as if he had “ended up in the sewer.” Their room was smaller than the one at Lakeview Terrace, and the residents at the Wentworth seemed older and sicker. “There were people sitting in their chairs, half-asleep,” Rudy said. “Their tongues hung out.”
Rennie spent nearly all her time in her wheelchair or in bed, her eyes half-closed. Her face had become bloated. One night, she was so agitated that the nurses gave her Haldol, a drug commonly used to treat schizophrenia. When Rudy asked her questions, Rennie said “What?” in a soft, remote voice.

Shortly after her parents’ move, Belshe called an editor of the Vegas Voice, a newspaper distributed to all the mailboxes in senior communities in Las Vegas. In recent months, the paper had published three columns warning readers about Clark County guardians, writing that they “have been lining their pockets at the expense of unwitting seniors for a very long time.”

At Belshe’s urging, the paper’s political editor, Rana Goodman, visited the Norths, and published an article in the Voice, describing Rudy as “the most articulate, soft spoken person I have met in a very long time.” She called Clark County’s guardianship system a “(legal) elder abuse racket” and urged readers to sign a petition demanding that the Nevada legislature reform the laws. More than three thousand people signed.
Two months later, the Review-Journal ran an investigation, titled “Clark County’s Private Guardians May Protect—Or Just Steal and Abuse,” which described complaints against Shafer going back to the early eighties, when two of his employees were arrested for stealing from the estates of dead people.
In May, 2015, a month after the article appeared, when the Norths went to court to discuss their finances local journalists were in the courtroom and Norheim seemed chastened. “I have grave concerns about this case,” he said. He noted that Parks had sold the Norths’ belongings without proper approval from his court. Parks had been doing this routinely for years, and, according to her, the court had always accepted her accounting and her fees. Her lawyer, Aileen Cohen, said, “Everything was done for the wards’ benefit, to support the wards.”
Norheim announced that he was suspending Parks as the Norths’ guardian—the first time she had been removed from a case for misconduct.
“This is important,” Rudy, who was wearing a double-breasted suit, said in court. “This is hope. I am coming here and I have hope.” He quoted the Bible, Thomas Jefferson, and Euripides, until Belshe finally touched his elbow and said, “Just sit down, Dad.”
When Rudy apologized for being “overzealous,” Norheim told him, “This is your life. This is your liberty. You have every right to be here. You have every right to be involved in this project.”
After the hearing, Parks texted her husband, “I am finished.”

Last March, Parks and her lawyer, along with her office manager and her husband, were indicted for perjury and theft, among other charges. The indictment was narrowly focussed on their double billings and their sloppy accounting, but, in a detailed summary of the investigation, Jaclyn O’Malley, who led the probe for the Nevada Attorney General’s Office, made passing references to the “collusion of hospital social workers and medical staff” who profited from their connection to Parks. At Parks’s grand-jury trial, her assistant testified that she and Parks went to hospitals and attorneys’ offices for the purpose of “building relationships to generate more client leads.” Parks secured a contract with six medical facilities whose staff agreed to refer patients to her—an arrangement that benefitted the facilities, since Parks controlled the decisions of a large pool of their potential consumers. Parks often gave doctors blank certificates and told them exactly what to write in order for their patients to become her wards.

Parks and other private guardians appeared to gravitate toward patients who had considerable assets. O’Malley described a 2010 case in which Parks, after receiving a tip from a social worker, began “cold-calling” rehabilitation centers, searching for a seventy-nine-year-old woman, Patricia Smoak, who had nearly seven hundred thousand dollars and no children. Parks finally found her, but Smoak’s physician wouldn’t sign a certificate of incapacity. “The doctor is not playing ball,” Parks wrote to her lawyer. She quickly found a different doctor to sign the certificate, and Norheim approved the guardianship. (Both Parks and Norheim declined to speak with me.)

Steve Miller, a former member of the Las Vegas City Council, said he assumed that Shafer would be the next indictment after Parks, who is scheduled to go to trial next spring. “All of the disreputable guardians were taking clues from the Shafer example,” he said. But, as the months passed, “I started to think that this has run its course locally. Only federal intervention is going to give us peace of mind.”

Richard Black, who, after his father-in-law was placed into guardianship, became the director of a grassroots national organization, Americans Against Abusive Probate Guardianship, said that he considered the Parks indictment “irrefutably shallow. It sent a strong message of: We’re not going to go after the real leaders of this, only the easy people, the ones who were arrogant and stupid enough to get caught.” He works with victims in dozens of what he calls “hot spots,” places where guardianship abuse is prevalent, often because they attract retirees: Palm Beach, Sarasota, Naples, Albuquerque, San Antonio. He said that the problems in Clark County are not unusual. “The only thing that is unique is that Clark County is one of the few jurisdictions that doesn’t seal its records, so we can see what is going on.”

Approximately ten per cent of people older than sixty-five are thought to be victims of “elder abuse”—a construct that has yet to enter public consciousness, as child abuse has—but such cases are seldom prosecuted. People who are frail or dying don’t make good witnesses—a fact that Shafer once emphasized at a 1990 U.S. congressional hearing on crimes against the elderly, in which he appeared as an expert at preventing exploitation. “Seniors do not like to testify,” he said, adding that they were either incapable or “mesmerized by the person ripping them off.” He said, “The exploitation of seniors is becoming a real cottage industry right now. This is a good business. Seniors are unable to fend for themselves.”

In the past two years, Nevada has worked to reform its guardianship system through a commission, appointed by the Nevada Supreme Court, to study failures in oversight. In 2018, the Nevada legislature will enact a new law that entitles all wards to be represented by lawyers in court. But the state seems reluctant to reckon with the roots of the problem, as well as with its legacy: a generation of ill and elderly people who were deprived of their autonomy, and also of their families, in the final years of their lives. Last spring, a man bought a storage unit in Henderson, Nevada, and discovered twenty-seven urns—the remains of Clark County wards who had never been buried.

In the wake of Parks’s indictment, no judges have lost their jobs. Norheim was transferred from guardianship court to dependency court, where he now oversees cases involving abused and neglected children. Shafer is still listed in the Clark County court system as a trustee and as an administrator in several open cases. He did not respond to multiple e-mails and messages left with his bookkeeper, who answered his office phone but would not say whether he was still in practice. He did appear at one of the public meetings for the commission appointed to analyze flaws in the guardianship system. “What started all of this was me,” he said. Then he criticized local media coverage of the issue and said that a television reporter, whom he’d talked to briefly, didn’t know the facts. “The system works,” Shafer went on. “It’s not the guardians you have to be aware of, it’s more family members.” He wore a blue polo shirt, untucked, and his head was shaved. He looked aged, his arms dotted with sun spots, but he spoke confidently and casually. “The only person you folks should be thinking about when you change things is the ward. It’s their money, it’s their life, it’s their time. The family members don’t count.”

Belshe is resigned to the fact that she will be supporting her parents for the rest of their lives. Parks spent all the Norths’ money on fees—the hourly wages for her, her assistants, her lawyers, and the various contractors she hired—as well as on their monthly bills, which doubled under her guardianship. Belshe guesses that Parks—or whichever doctor or social worker referred her to the Norths—had assumed that her parents were wealthier than they actually were. Rudy often talked vaguely about deals he had once made in China. “He exaggerates, so he won’t feel emasculated,” Belshe said. “He wasn’t such a big businessman, but he was a great dad.”

The Norths now live in what used to be Belshe’s home office; it has a window onto the living room which Belshe has covered with a tarp. Although the room is tiny, the Norths can fit most of their remaining belongings into it: a small lamp with teardrop crystals, a deflated love seat, and two paintings by their son. Belshe rescued the art work, in 2013, after Caring Transitions placed the Norths’ belongings in trash bags at the edge of their driveway. “My brother’s paintings were folded and smelled,” she said.

The Norths’ bed takes up most of the room, and operates as their little planet. They rarely stray far from it. They lie in bed playing cards or sit against the headboard, reading or watching TV. Rudy’s notebooks are increasingly focussed on mortality—“Death may be pleasurable”—and money. “Money monsters do well in this society,” he wrote. “All great fortunes began with a crime.” He creates lists of all the possessions he has lost, some of which he may be imagining: over time, Rennie’s wardrobe has become increasingly elaborate and refined, as have their sets of China. He alternates between feeling that his belongings are nothing—a distraction from the pursuit of meaning—and everything. “It’s an erasure,” he said. “They erase you from the face of the earth.” He told me a few times that he was a distant cousin of Leon Trotsky, “intellect of the revolution,” as he called him, and I wondered whether his newfound pride was connected to his conflicted feelings about the value of material objects.

A few months after the Norths were freed, Rudy talked on the phone with Adolfo Gonzalez, his neighbor from Lakeview Terrace, who, after a doctor found him competent, had also been discharged. He now lived in a house near the airport, and had been reunited with several of his pets. The two men congratulated each other. “We survived!” Rudy said. “We never thought we’d see each other on the other side.” Three other wards from Lakeview Terrace had died.

Rennie has lost nearly all the weight she gained at Lakeview Terrace, mostly because Belshe and her husband won’t let her lounge in her wheelchair or eat starchy foods. Now she uses a walker, which she makes self-deprecating jokes about. “This is fun—I can teach you!” she told me.

In July, Rennie slipped in the bathroom and spent a night in the hospital. Belshe didn’t want anyone to know about her mother’s fall, because, she said, “this is the kind of thing that gets you into guardianship.” She told me, “I feel like these people are just waiting in the bushes.”

Two days after the fall, Rennie was feeling better—she’d had thirteen stitches—but she was still agitated by a dream she had in the hospital. She wasn’t even sure if she’d been asleep; she remembers talking, and her eyes were open.

“You were loopedy-doopy,” Scott Belshe, Julie’s husband, told her. They were sitting on the couch in their living room.

“It was real,” Rennie said.

“You dreamed it,” Scott told her.

“Maybe I was hallucinating,” she said. “I don’t know—I was scared.” She said that strangers were making decisions about her fate. She felt as if she were frozen: she couldn’t influence what was happening. “I didn’t know what to do,” she told Scott. “I think I yelled for help. Help me.” The worst part, she said, was that she couldn’t find her family. “Honest to God, I thought you guys left me all alone.” ♦

https://www.newyorker.com/magazine/2017/10/09/how-the-elderly-lose-their-rights?mbid=nl_Weekly_171002&CNDID=17773430&spMailingID=12057104&spUserID=MTg3ODc1NjY2MzQ5S0&spJobID=1260149417&spReportId=MTI2MDE0OTQxNwS2

THIS SITUATION IS GOING ON IN ILLINOIS, IN FLORIDA, IN CALIFORNIA, OHIO, PENNSYLVANIA, NEW YORK and is being covered up by a massive conspiracy of public officials that include the POLITICAL ELITE, Judicial elite – including judges, lawyers, et al. Here in Illinois one of the miscreants was very candid – he referred to the elderly as a commodity.

Here in Illinois the suggestion that corruption existed and an HONEST INVESTIGATION be conducted not only was not well received, but yours truly and other lawyers who would not remain silent were punished by suspension of their law licenses by the Illinois Supreme Court. so arrogant are the 18 USCA 371 co conspirators that under the name of JEROME LARKIN the lawyer rule 8.3 and the 18 USCA 4 reporting of the felonies similar to those noted in the NEW YORKER magazing article by judges (and other judicial officials) was analogized to be akin to “yelling fire in a crowded theater!”

The Las Vegas terrorism was reported to be the biggest single murder spree in American History – however – that is not accurate. More senior citizens are killed (elder cleansing) by wrongfully appointed guardians that the Vegas killer! Equally disturbing is the fact that each of us — you and me – is a potential victim.

In New York City:

I need people to come to NYC 60 centre street tomorrow afternoon 1:45 2:00 p.m. room 212 supreme court Judge Matthew Coopers room for court watching and legal friend support. This is evette mobile is 917 902 5798 thank u.

Wednedsay July 25th, 38th anniversary, really ironic.

In Chicago:

Probate Court, decedent’s estate, Chicago.

Name of case: Teichert. 11:30 am. Client Linda Scully. 18th floor Chicago Daley Center. Judge Malone. phone 312 549 2112

thanks to all out there that can go

Joanne

Computer Hacker Who Defended Justina Pelletier When Medically Kidnapped Speaks Out From Jail Where he has been for 2 Years Without a Trial

Health Impact News

MartyG: “My Prosecutor Quit His Job”

by Marty Gottesfeld
from jail

Was a recent courtroom confrontation the last straw or was there more?

My name is Marty Gottesfeld and I defended Justina Pelletier and her parents’ rights when she was medically kidnapped by Harvard’s Boston Children’s Hospital (BCH) in 2014.

Shortly thereafter the FBI and U.S. Justice Department began systematically trying to destroy the lives that my lovely and courageous wife Dana and I had built for ourselves in nearby Somerville, Massachusetts.

They nearly succeeded. This month marks the beginning of my third year in jail awaiting trial for helping to save Justina’s life.

It also marks the beginning of the end of the 5-year federal criminal statute of limitations on the crimes perpetrated by the hospital and its staff, who accepted hundreds of thousands of Medicaid dollars to treat Justina for a condition that she never had in the first place.

I’ve been called Justina’s “Guardian Hacktivist.” Rolling Stone calls me “The Hacker Who Cared Too Much.” I’ve also been called a “political prisoner.”

As many victims of medical kidnapping are acutely aware, unfortunately political connections matter more than facts in these cases and the one common thread which weaves its way through nearly every party that chose to persecute the Pelletiers as well as my family and me is Harvard.

You see, not only is BCH a Harvard institution whose employees use Harvard email addresses, not only is it a local hotspot for medical kidnappings, but the former U.S. attorney who chose to indict me, as well as the acting U.S. attorney who replaced her before Trump was sworn in and the former governor of Massachusetts who ignored Justina’s plight until she was crippled and nearly dead are all closely-aligned with the Ivy League university.

In fact, federal Magistrate Judge Marianne Bowler, who signed off on the search warrant for my home and who ordered me detained without bail, worked at Harvard Medical School, she is married to a current Harvard medical school professor and she was the director of a foundation which still raises money for Justina’s torturers.

She didn’t recuse herself from my case, though this past summer she recused herself from another matter involving Harvard hospitals.

Throughout this whole ordeal, until recently, there was also Adam J. Bookbinder, the former top federal cybercrime prosecutor in Boston and – you guessed it – he’s a Harvard grad. It was Bookbinder who applied for a wiretap on my cable modem as well as for a search warrant for my home.

He had the FBI hand-deliver me a target letter after they seized thousands of dollars of my computer equipment. And that was before the FBI went to see my in-laws in California to try to intimidate them as well. It was also Bookbinder who hand-picked magistrate Bowler and lied by omission about her conflicts of interest.

And when we started exposing all of this, it was Bookbinder who threatened my wife for posting things to YouTube. He’s now been lampooned by the left and emasculated by the right.

Then, at the last court hearing that I attended, I confronted Bookbinder while Dana held up before and after photos of Justina, showing how his alma mater had transformed her from vibrantly figure skating into barely being able to push her wheelchair.

See: ‘Hacktivist’ begins hearing with outburst, wife asked to leave

For the record too, there are other things about Bookbinder that I look forward to exposing soon, but that will be another story.

Regardless, right after the hearing above a new prosecutor was assigned to my case. Then Bookbinder withdrew from it.

Fast forward a month or two, and we have just learned that Bookbinder – a career prosecutor and division chief – quit his job to go into private practice as a partner at the firm Holland and Knight LLP.

I wonder, do they really know who they just hired? And did Bookbinder leave his career as a prosecutor because of the facts that are already out there or was there more?

It’s no secret to the Boston U.S. attorney’s office that I’ve long been suspicious of Bookbinder and that we’ve been digging into his background…

MartyG

The author, Marty Gottesfeld is a political prisoner. To learn more about his case, please go to FreeMartyG.com.

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Basic objections

Hearsay or calls for hearsay. As soon as you hear the words “conversation”, “he said”, “she said”, think about a hearsay objection. All you have to say is “objection, hearsay.” you really don’t have to explain. Hearsay is defined as an “out of court statement to prove the truth of the matter asserted. There are many exceptions to hearsay, including “excited utterance”, you’re introducing it for other purposes, etc.
Irrelevant. If the issue has nothing really to do with your case, just say “objection, irrelevant.” Generally matters and documents which arose more than 2 years to anything alleged in the complaint is irrelevant. The standard is whether the information is directly relevant to your case and therefore admissible evidence or it may lead to the discovery of admissible evidence.
Calls for speculation. “Objection, calls for speculation.” Some examples, if you are asked about how your kid felt about something. You don’t know how someone else feels. You don’t know what someone else is thinking.
Vague. If you really don’t understand the question, say “objection, vague” and ask the attorney or whomever to rephrase the question so you understand it. Never answer a question you don’t understand. You can even repeat it and make it clearer, but try to avoid that. Make the questioner do his or her work.
Compound. “Objection compound question.” The questioner is only allowed to ask you about one question or thing at a time. For example,” when did you go to your mother’s home and where did you find the lamp and was it broken then”. This is too much and should be broken up into 3 separate questions.
Calls for a legal conclusion. These are kind of fun. You might want to answer them anyway, but start with “calls for a legal conclusion and I am not a lawyer.” then you can say “of course, I’m not liable” or whatever your excuse was for breaking a law or your belief it does not apply to you.

You should be following the Illinois Rules of Evidence and read those provisions carefully before your deposition

You can find the Illinois Rules of Evidence here:

Click to access C6311_Illinois_Rules_of_Evidence_Color-Coded_Guide.pdf

https://store.lexisnexis.com/nita/categories/area-of-practice-153/illinois-rules-of-evidence-with-objections-and-responses-skuusSKU5628680

you might try the above book from the Daley Center Law Library

There are also many good youtube videos on how to defend a deposition and I will post some here.

Good luck to all of you who cannot afford an atty.

JoAnne

basic video on you tube about defending a deposition (short), 3 min

another youtube on deposition objections

this is better and more specific. note the types of objections you can make

Who is an “officer of the court”?
2. What is “fraud on the court”?
3. What effect does an act of “fraud upon the court” have upon the court proceeding?
4. What causes the “Disqualification of Judges?”
Who is an “officer of the court”?

A judge is an officer of the court, as well as are all attorneys. A state judge is a state judicial officer, paid by the State to act impartially and lawfully. A federal judge is a federal judicial officer, paid by the federal government to act impartially and lawfully. State and federal attorneys fall into the same general category and must meet the same requirements. A judge is not the court. People v. Zajic, 88 Ill.App.3d 477, 410 N.E.2d 626 (1980).

What is “fraud on the court”?

Whenever any officer of the court commits fraud during a proceeding in the court, he/she is engaged in “fraud upon the court”. In Bulloch v. United States, 763 F.2d 1115, 1121 (10th Cir. 1985), the court stated “Fraud upon the court is fraud which is directed to the judicial machinery itself and is not fraud between the parties or fraudulent documents, false statements or perjury. … It is where the court or a member is corrupted or influenced or influence is attempted or where the judge has not performed his judicial function — thus where the impartial functions of the court have been directly corrupted.”
“Fraud upon the court” has been defined by the 7th Circuit Court of Appeals to “embrace that species of fraud which does, or attempts to, defile the court itself, or is a fraud perpetrated by officers of the court so that the judicial machinery can not perform in the usual manner its impartial task of adjudging cases that are presented for adjudication.” Kenner v. C.I.R., 387 F.3d 689 (1968); 7 Moore’s Federal Practice, 2d ed., p. 512, ¶ 60.23. The 7th Circuit further stated “a decision produced by fraud upon the court is not in essence a decision at all, and never becomes final.”

What effect does an act of “fraud upon the court” have upon the court proceeding?

“Fraud upon the court” makes void the orders and judgments of that court.
It is also clear and well-settled Illinois law that any attempt to commit “fraud upon the court” vitiates the entire proceeding. The People of the State of Illinois v. Fred E. Sterling, 357 Ill. 354; 192 N.E. 229 (1934) (“The maxim that fraud vitiates every transaction into which it enters applies to judgments as well as to contracts and other transactions.”); Allen F. Moore v. Stanley F. Sievers, 336 Ill. 316; 168 N.E. 259 (1929) (“The maxim that fraud vitiates every transaction into which it enters …”); In re Village of Willowbrook, 37 Ill.App.2d 393 (1962) (“It is axiomatic that fraud vitiates everything.”); Dunham v. Dunham, 57 Ill.App. 475 (1894), affirmed 162 Ill. 589 (1896); Skelly Oil Co. v. Universal Oil Products Co., 338 Ill.App. 79, 86 N.E.2d 875, 883-4 (1949); Thomas Stasel v. The American Home Security Corporation, 362 Ill. 350; 199 N.E. 798 (1935).
Under Illinois and Federal law, when any officer of the court has committed “fraud upon the court”, the orders and judgment of that court are void, of no legal force or effect.

What causes the “Disqualification of Judges?”

Federal law requires the automatic disqualification of a Federal judge under certain circumstances.

In 1994, the U.S. Supreme Court held that “Disqualification is required if an objective observer would entertain reasonable questions about the judge’s impartiality. If a judge’s attitude or state of mind leads a detached observer to conclude that a fair and impartial hearing is unlikely, the judge must be disqualified.” [Emphasis added]. Liteky v. U.S., 114 S.Ct. 1147, 1162 (1994).

Courts have repeatedly held that positive proof of the partiality of a judge is not a requirement, only the appearance of partiality. Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847, 108 S.Ct. 2194 (1988) (what matters is not the reality of bias or prejudice but its appearance); United States v. Balistrieri, 779 F.2d 1191 (7th Cir. 1985) (Section 455(a) “is directed against the appearance of partiality, whether or not the judge is actually biased.”) (“Section 455(a) of the Judicial Code, 28 U.S.C. §455(a), is not intended to protect litigants from actual bias in their judge but rather to promote public confidence in the impartiality of the judicial process.”).

That Court also stated that Section 455(a) “requires a judge to recuse himself in any proceeding in which her impartiality might reasonably be questioned.” Taylor v. O’Grady, 888 F.2d 1189 (7th Cir. 1989). In Pfizer Inc. v. Lord, 456 F.2d 532 (8th Cir. 1972), the Court stated that “It is important that the litigant not only actually receive justice, but that he believes that he has received justice.”

The Supreme Court has ruled and has reaffirmed the principle that “justice must satisfy the appearance of justice”, Levine v. United States, 362 U.S. 610, 80 S.Ct. 1038 (1960), citing Offutt v. United States, 348 U.S. 11, 14, 75 S.Ct. 11, 13 (1954). A judge receiving a bribe from an interested party over which he is presiding, does not give the appearance of justice.

“Recusal under Section 455 is self-executing; a party need not file affidavits in support of recusal and the judge is obligated to recuse herself sua sponte under the stated circumstances.” Taylor v. O’Grady, 888 F.2d 1189 (7th Cir. 1989).

Further, the judge has a legal duty to disqualify himself even if there is no motion asking for his disqualification. The Seventh Circuit Court of Appeals further stated that “We think that this language [455(a)] imposes a duty on the judge to act sua sponte, even if no motion or affidavit is filed.” Balistrieri, at 1202.

Judges do not have discretion not to disqualify themselves. By law, they are bound to follow the law. Should a judge not disqualify himself as required by law, then the judge has given another example of his “appearance of partiality” which, possibly, further disqualifies the judge. Should another judge not accept the disqualification of the judge, then the second judge has evidenced an “appearance of partiality” and has possibly disqualified himself/herself. None of the orders issued by any judge who has been disqualified by law would appear to be valid. It would appear that they are void as a matter of law, and are of no legal force or effect.

Should a judge not disqualify himself, then the judge is violation of the Due Process Clause of the U.S. Constitution. United States v. Sciuto, 521 F.2d 842, 845 (7th Cir. 1996) (“The right to a tribunal free from bias or prejudice is based, not on section 144, but on the Due Process Clause.”).

Should a judge issue any order after he has been disqualified by law, and if the party has been denied of any of his / her property, then the judge may have been engaged in the Federal Crime of “interference with interstate commerce”. The judge has acted in the judge’s personal capacity and not in the judge’s judicial capacity. It has been said that this judge, acting in this manner, has no more lawful authority than someone’s next-door neighbor (provided that he is not a judge). However some judges may not follow the law.

If you were a non-represented litigant, and should the court not follow the law as to non-represented litigants, then the judge has expressed an “appearance of partiality” and, under the law, it would seem that he/she has disqualified him/herself.

However, since not all judges keep up to date in the law, and since not all judges follow the law, it is possible that a judge may not know the ruling of the U.S. Supreme Court and the other courts on this subject. Notice that it states “disqualification is required” and that a judge “must be disqualified” under certain circumstances.

The Supreme Court has also held that if a judge wars against the Constitution, or if he acts without jurisdiction, he has engaged in treason to the Constitution. If a judge acts after he has been automatically disqualified by law, then he is acting without jurisdiction, and that suggest that he is then engaging in criminal acts of treason, and may be engaged in extortion and the interference with interstate commerce.

Courts have repeatedly ruled that judges have no immunity for their criminal acts. Since both treason and the interference with interstate commerce are criminal acts, no judge has immunity to engage in such acts.

Fraud Upon The Court

From Joanne:

GG also tells me that while the US Supreme Court had an unanimous decision on TILA that he homeowner can just send a certified letter to terminate all payments under his or her contract and get a new mortgage (yes, did you know you could do that?), state courts, including Illinois are trying to ignore that ruling or craft around it. I have asked him to write up a case quote/case digest article on it. I do not see one on the internet.

elephant-guardianship-fraudianship guardzilla-guardianship-monster guardian-repellant-spray

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I think Daniel did a great job and thanks for doing these!

http://chicagotribune.com/news/local/breaking/ct-met-judge-misdemeanor-gun-charge-20180710-story.html

What’s interesting about this story is that the judge is charged for dropping a loaded gun that did not hurt anyone.

However, if a Judge in probate allows the drugging, forcing a senior into a nursing home against his or her will, isolating them from family and friends, selling the home for a reduced price, and all sorts of horrible harm to a ward of the state, no one, not the states attorneys, not the FBI will touch that one.

Mary Sykes, Al Frake, Carol Wyman, Mary Jane Teichert, and the list goes on and on, were all murdered, but THAT the authorities can ignore.

Who care about a dropped gun when the judges are involved in torture and murder of the elderly?

JoAnne

From the US govt forms data base:

Click to access ao241.pdf

From the internet for state court (you have to file in state court first)

here is the link in google docts

https://docs.google.com/document/d/1NuZZvRxKg2Z7Pl3AOy1BecX3_iCFoaAJT7Qym3SAYSw/edit

please print this out and mail it to all state prisons that you know of. Many people are wrongfully arrested and imprisoned. This should be sent to the law librarian at the prison so prisoners can print this out and fill it out and send it in. It might have to be accompanied by a Motion or Petition for Waiver of Fees (aka “Paupers Petition” or “Indigent Petition.”

Good luck and best wishes to all those out there wrongfully imprisoned.

joanne

Remember, in court you can’t call your opponent a liar, the judge a liar, that both the judge and opposing counsel is working to rubber stamp corruption. You have to be more subtle. Best defense: give them all a word they have to look up.

So this is a beginning series of Useful Words you can use in court:

Bloviate: Long winded and wordy.

Example: Mr. X is a bloviate attorney indulging in numerous obtuse excuses for his client’s illegal behavior.

Sophistry: Deceptive Arguments

Example: Mr X’s brief is filled with nothing by sophistry

Or, ah a new pleading from Mr. X filled with his magnificent Sophistry

Asserverate: Confirm or affirm in an earnest manner

The Office of Public Guardian is always asserverate in dispensing with wards or their property.

you can find this case at:

Click to access 2018-ohio-2417.pdf

selections from this case:

Divorce—A trial court’s order appointing a guardian ad litem to represent an adult
in a divorce case is a final, appealable order under R.C. 2505.02(B)(2)
when adult has not been adjudicated incompetent subsequent to providing
parties with notice and opportunity to be heard on issue of adult’s
competency—Court of appeals’ judgment reversed, trial court’s order
appointing guardian ad litem vacated, and cause remanded to trial court.
(No. 2016-1629—Submitted November 21, 2017—Decided June 27, 2018.)
APPEAL from the Court of Appeals for Cuyahoga County, No. 104579.

{¶ 1} Appellant, Carol J. Thomasson (“Carol”), has asked us to reverse a
judgment of the Eighth District Court of Appeals and hold that the trial court’s order
appointing a guardian ad litem (“GAL”) to act on her behalf in her divorce case is
SUPREME COURT OF OHIO
2
a final, appealable order under R.C. 2505.02(B)(2). Carol has also asked us to
conclude that the order violates her due-process rights and that it should be vacated
as a result.
{¶ 2} In the case at bar, the Cuyahoga County Court of Common Pleas,
Domestic Relations Division, issued an order appointing a GAL to represent Carol
without providing her with prior notice or an opportunity to be heard on the issue.
The order was issued during a special proceeding and affects a substantial right,
and Carol will not be provided adequate relief if she is not permitted to immediately
appeal the order. Therefore, the order is a final, appealable order under R.C.
2505.02(B)(2), and we reverse the judgment of the court of appeals. Further, the
lack of proper process violated Carol’s due-process rights, and we therefore vacate
the trial court’s order and remand the case to the trial court for further proceedings

***********

{¶ 11} Thus, to demonstrate that the trial court’s order appointing a GAL
for her is a final, appealable order, Carol must show (1) that the order was made in
a special proceeding, (2) that the order affects a substantial right, and (3) that she
would not be able to effectively protect her substantial right without immediate
review.

****************

{¶ 13} In 1998, the legislature amended R.C. 2505.02 and provided a
definition of “substantial right.” Sub.H.B. No. 394, 147 Ohio Laws, Part II, 3277.
R.C. 2505.02(A)(1) defines “substantial right” as “a right that the United States
Constitution, the Ohio Constitution, a statute, the common law, or a rule of
procedure entitles a person to enforce or protect.” Carol argues that the trial court’s
order violates her “right to procedural due process” and that “due process is a
substantial right that the United States Constitution entitles a person to enforce
and/or protect.”
{¶ 14} In support of this argument, Carol asserts that before appointing the
GAL, the trial court did not provide the parties with notice or the chance to be heard
regarding the appointment. These assertions are supported by the record. The
record does not reflect that the parties were notified that the court was considering
appointing a GAL for Carol, and the record includes no evidence from which we
could conclude that Carol was provided any opportunity to be heard prior to the
appointment of the GAL.
{¶ 15} Ohio courts have not previously addressed whether an order
appointing a GAL to represent an adult without an adjudication that the adult is
incompetent—that is, without a hearing on the matter and prior to any notice to the
adult—violates the adult’s right to due process. Several other state courts have
addressed similar situations. Those courts have concluded that such an
appointment is improper, many specifically holding that the improper appointment
violates due-process protections.
{¶ 16} In In re Joann E., 104 Cal.App.4th 347, 128 Cal.Rptr.2d 189 (2002),
the California Court of Appeal reviewed a lower court’s order appointing a GAL to
act on behalf of a grandmother who was attempting to retain custody of her minor
grandchild. The reviewing court found that the lower court’s order violated thegrandmother’s right to due process because the court had failed to provide prior
notice and hold a competency hearing. Id. at 349.
{¶ 17} In State v. Ladd, 139 Vt. 642, 644, 433 A.2d 294 (1981), the
Supreme Court of Vermont held that a lower court’s decision not to remove a GAL
for an adult defendant who was determined to be competent “seriously impinge[d]
upon the defendant’s rights to due process guaranteed by the United States
Constitution.”
{¶ 18} In J.H. v. Ada S. McKinley Community Servs., Inc., 369 Ill.App.3d
803, 861 N.E.2d 320 (2006), an Illinois Court of Appeals cited the federal Due
Process Clause when determining that two former foster children should not have
been appointed a GAL after they had become adults because they had not been
adjudicated incompetent. Id. at 816, citing Ladd at 644.
{¶ 19} And in Graham v. Graham, 40 Wash.2d 64, 240 P.2d 564 (1952),
the Supreme Court of Washington issued a writ of prohibition to prevent a lower
court from appointing a GAL for an adult without providing the adult a hearing and
the opportunity to be heard. The supreme court did not cite the Due Process Clause,
but the court’s reasoning clearly expresses due-process concerns:
The interposition of a guardian ad litem could very well substitute
his judgment, inclinations and intelligence for an alleged
incompetent’s; furthermore, the retention of legal counsel or the
employment of a different attorney could be determined solely by
the guardian ad litem, subject, of course, to some direction and
control by the court, and the latter might be open to some question.
In any event the changes which might result from the appointment
of a guardian ad litem are of such significance as to be permitted
only after a full, fair hearing and an opportunity to be heard is
accorded to an alleged incompetent.Id. at 68.
{¶ 20} We agree with the determinations and reasoning of these several
courts. When a GAL is appointed by a court to represent an adult, that adult loses
some autonomy in directing the litigation. It violates an adult’s right to due process
to treat the adult as an incompetent and to deprive that adult of his or her autonomy
without an adjudication that the adult is incompetent and without prior notice and
an opportunity to be heard on the issue of his or her competency.
{¶ 21} The trial court’s order treated Carol as though she had been
adjudicated incompetent and appointed a GAL to represent her interests, but the
order was not preceded by an adjudication of incompetency, prior notice, and any
opportunity to be heard on the issue. This lack of process violates Carol’s right to
due process and, therefore, implicates a “substantial right” as defined in R.C.
2505.02(A)(1).

{¶ 24} In Wilhelm-Kissinger, this court determined that an order denying a
motion to disqualify opposing counsel in a divorce proceeding was not a final,
appealable order under R.C. 2505.02(B)(2). Id. at ¶ 12. The court distinguished an
order denying a motion to disqualify counsel from an order granting such a motion.
The court noted that “an order granting disqualification immediately and definitely
affects the party it deprives of chosen counsel; the purpose of appealing such an
order is to prevent the removal itself.” Id. at ¶ 9. The court also noted that the
granting of a motion to disqualify counsel has a permanent effect because it is
unlikely to be revisited by the trial court. Id. at ¶ 10. Similarly, in State ex rel.
McGinty v. Eighth Dist. Court of Appeals, 142 Ohio St.3d 100, 2015-Ohio-937, 28
N.E.3d 88, ¶ 27, this court held that an order denying a criminal defendant’s motion
to disqualify the prosecuting attorney was not a final, appealable order. The court
noted that allowing an interlocutory appeal in such circumstances would enable a
criminal defendant to get “an automatic, months-long delay in his or her
prosecution by moving to disqualify the prosecutor and then appealing the resulting
denial.” Id. at ¶ 25.

{¶ 26} Finally, in Blackburn v. Ward, 4th Dist. Scioto No. 05CA3014,
2006-Ohio-406, ¶ 13, the Fourth District held that a probate court’s determination
that certain assets belonged to one party and not another was a final, appealable
order, despite other issues in the case remaining before the court. The Fourth
District reasoned that the assets, which included a farm and personal property,
could be liquidated easily and that the appellants, even if successful in a future
appeal, would not be able to recover assets that were previously liquidated.

{¶ 27} These cases are instructive. In the case at bar, similar to the situation
described by this court in Wilhelm-Kissinger regarding disqualification of chosen
counsel, the trial court’s order appointing a GAL to represent Carol, if left
undisturbed, would have an immediate effect; Carol’s autonomy would be
immediately diminished because she would be treated as though she had been
adjudicated incompetent and as a result, her judgment, inclinations, and intelligence
would be replaced, at least to some extent, by those of the GAL. Additionally, and
again analogous to this court’s reasoning in Wilhelm-Kissinger, since Carol was not
actually adjudicated to be incompetent, it is hard to understand how the trial court
could revisit a nonexistent adjudication

Here, the court’s order sua sponte appointing a GAL to
represent Carol without prior notice and an adjudication of incompetency was
entirely beyond Carol’s control. In such circumstances, any delay caused by an
immediate appeal should not be attributed to Carol

{¶ 30} In addition, negotiation often involves tactics and a careful and
selective exchange of information. The tactics used and information revealed by
Carol’s GAL could not be clawed back—much in the same way that the revelation
of confidential information cannot be undone. Thus, as in Cleveland Clinic Found.
and Sahady, confidential information could be exchanged during negotiations and
Carol would not have full control over the dissemination of that information. An
appeal after final judgment could not undo the damage that she would suffer in such
a situation.

{¶ 34} For these reasons, we set forth the narrow and limited holding that
under R.C. 2505.02(B)(2), a trial court’s order appointing a GAL to represent an
adult in a divorce case is a final, appealable order when that adult has not been
adjudicated incompetent subsequent to providing the parties with notice and an
opportunity to be heard on the issue of the adult’s competency. In this unique case,
the order appointing a GAL to represent Carol is a final, appealable order.

Tactics Judges Use to Take your Children
• Judges often meet in Chambers with all Attorney’s, G.A.L’s to make deals without client present. Where no court reporter is present and no audio video proof of what being said.
• Judges will ignore testimony, facts and witnesses
• They will confuse issues in cases
• They will use Courthouse Security Guards to intimidate people, by interrogation or by following you
• They will collude with G.A.L and make decisions without reason or proof, usually an oral reason with no basis or fact
• They will give you no due process
• Frequently ignore the law and your Constitutional rights
• Make biased judgements against a certain party, where the other party will break court orders with full judicial immunity
• Threaten you to sign paperwork under duress without discovery
• Allows certain parties to create Fraud upon the court, “Perjury” while the other is threatened into silence
• Judge will institute court orders in which she will break, or allow certain parties to break, while other parties cannot
• They will never admit wrong doing, even after proven they did
• Judge will ignore Witnesses or evidence that does not fit objective
• Judge will continuously side against one party
• Ignores crimes from certain parties
• Rubber stamping everything one side does
• Sealing documents so crimes are hidden
• Changing or removing the court reporters record
• Failure to consider evidence or hear petitions
• Denying constitutional or civil rights
• Stopping you from representing yourself
• They will create Orders based on insufficient evidence from certain parties
• They will create Orders based on Fiction that will force you into contempt of court

Tomorrow there will be a number of Judges at the Wheaton 4th of July parade that I have received a lot of complaints about.

Litigants who believe that they have not received justice in the DuPage County courts are welcome to come out and meet up with other protesters to rally for justice and accountability at the following address:

The parade starts out at 5/3 Bank

1500 North Main Street Wheaton, IL 60187

815 715 0930 and ask for Silvia

There will be sign boards and lots of flyers to pass out.

Please call the above phone number if interested.

We are actually trying to get together a group of protesters to do each courthouse in Illinois in each county until we have justice and accountability in our Illinois court system.

for more info see the facebook page for Unified Alliance Illinois

Mike Ference works tirelessly to help victims of clergy sexual abuse. These people have no place in our churches. Pray for our churches to stay pure. Pray for justice for these victims.

from Mike:

Sadly, more whistleblowers of Catholic clergy sex abuse and cover-ups continue to reach out to me; a $10.00 an hour security guard for help in lieu of government agencies and law enforcement officials. We can only assume they trust me more than any PA government official to do the right thing, or to at least try and do the right thing.

Perhaps, it’s time that PA Attorney General Josh Shapiro hire me as independent agent for his office. I would be willing to work as an independent contractor. I would even be willing to work for a measly $10.00 an hour, no benefits, certainly no pension or 401 plan.

Maybe, some of my passion, dedication and hunger for the truth would rub off on some of the highly paid nitwits who tried to convince me that the attempted murder of my son was an accident.

I’m reaching out to any former student, parishioner of St. Phillip’s Parish in Crafton, PA who would be aware of the sexual abuse of students their dating back to the 70s and 80s. At least 3 to 5 young men have committed suicide. While other males have led a life of crime, alcoholism, drugs, etc. All signs of some type of abuse possibly sexual abuse.

I’m only releasing bits and pieces of my investigation so far, but at least one suicide victim told a fellow classmate(s) he wanted to cut off his penis. This student also told the classmate(s) his mother had stopped him from doing it on at least one occasion.

Father Richard Dorsch a convicted Child molester was a priest assigned to this parish back in those days. I was told he would babysit for a family with six children while the parents would go out. Sometimes he even stayed over night.

Father Ron Lenguin, current spokesperson for the Pittsburgh Diocese was also assigned to this parish back in the day.

Much more to come. Please share this post.

What Chutzpah. About the worst criminal on earth, a judge that literally ruined the lives of nearly 2,000 innocent children, he files for Clemency?

Let’s repeat what his buddy said, his partner in crime, Ciavarella, — zero tolerance and maximum sentence, always guilty, no attorney and no appeals.

I guess they don’t like their own medicine.

Judges are not above the law.

Joanne

https://www.thetimes-tribune.com/news/kids-for-cash-judge-seeks-clemency-1.2356664

Kids-for-cash judge seeks clemency

SCRANTON — Disgraced former kids-for-cash Judge Michael T. Conahan seeks clemency on the 17½-year federal prison sentence he is serving.

Conahan, 66, pleaded guilty to racketeering conspiracy charges in the scandal and has been behind bars since he was sentenced in September 2011. A searchable database on the Department of Justice’s website that was made public in March shows Conahan has a pending request for a sentence commutation, or reduction.

The database does not provide any information about the reason for the request. Justice Department spokeswoman Nicole Navas Oxman said the pardon attorney’s office does not disclose where in the process a case is pending.

Conahan and fellow Judge Mark A. Ciavarella Jr. were convicted of accepting kickbacks in exchange for funneling juvenile defendants to detention centers built by developer Robert K. Mericle’s construction firm and operated by companies controlled by former local attorney Robert Powell.

Ciavarella went to trial and was initially convicted of 12 of 39 charges, receiving a sentence of 28 years in prison. But he appealed and saw a federal judge reverse three of the most serious convictions earlier this year.

Conahan, however, reached a plea deal with prosecutors. He initially had a deal that would have put him in prison for just over seven years, but a federal judge rejected it because Conahan refused to accept full responsibility for the kids-for-cash scheme.

He ended up being sentenced to 17½ years in prison — more than a decade longer than called for under his initial deal.

Conahan is serving his time at Federal Correctional Institution, Miami, while Ciavarella is at Federal Correctional Institution-Ashland in Kentucky.

Contact the writer:

jhalpin@citizensvoice.com

570-821-2058

Lanre:

Indeed,” practicing Law while Black” (without official permission) apparently in Illinois is prohibited, however, the penalties associated therewith are our dirty little secrets. Indeed, everyone knows that we all are supposed to keep quiet concerning Cook County, Illinois approved corruption.

If the media were to expose your disciplinary proceeding in an election year the overt racism that you were subjected it might cause a few people who share a dark hue to their skin to not vote for the corrupt POLITICAL ELITE. Your example of honoring your oath might even breed a quest for the Court to rid itself of corruption!

Indeed, the overt racism that you were subjected might even tarnish certain favored members of the political elite. It was very difficult for Mr. Larkin (and by extension the Illinois Supreme Court) to explain how a disciplinary proceeding can (or could) be brought against you pursuant to Rule 8.3 for reporting to the IARDC and law enforcement the fact that a Circuit Court judge was a member of the Board of Directors of the defendant and her brother an attorney for the defendant. The refusual of the Judge to recuse herself was also difficult to reconcile with the concept of an honest and impartial judiciary.

It took great courage for Mr. Larkin to file a verified pleading claiming that facts everyone knew to be true were falsehoods uttered by you. As the judge did not deny the allegation Larkin had to go out on a limb. Larkin’s task became even more courageous when CRAINS CHICAGO BUSINESS independently exposed the very same facts you alleged in its publication! Indeed, if the averment concerning Judge **** had been made by a lawyer with a lighter hue to his skin the organized bar and civil rights organizations might have demanded Larkin’s disbarment and removal from the public sector for his breach of the public trust.

How could in Illinois a public official claim under oath facts to be true that everyone knew were not true? Why were you singled out? The reason is obvious to me, especially when one of your supporters – an Icon of the Selma March and the Civil Rights movement, was also singled out for humiliation by the 18 USCA 371 co-conspirators. (It should be noted that only one person was denied entry into the kangaroo hearing involving Attorney JoAnne Denison — Diane Nash! – As the hearing was open to the public and there was ample seating space for her the only conclusion was racism! It is interesting to note that the charge has not been denied! The fact that Ms. Nash did not even receive the disingenuous apology that is usually afforded to persons who the ‘SWAMP’ has denied equal protection of law speaks volumes!

I wish that official misconduct directed toward you ended at the matter, and at this late day, having gotten away with a vicious assault on the Illinois and Federal Constitution, the miscreants would just fade into the sunset and consider themselves lucky. I heard that the IARDC (Mr. Larkin) and the Illinois Supreme Court have made a demand that you make a statement acknowledging the untrue and misleading statements made against you by Larkin were true as a condition of reinstatement of your law license. I also heard that you refused to join in the ‘cover up!’

To me this demand upon you is just another act of overt racism and a penalty for representing your clients by demanding a fair hearing and a level playing field. Every day that this travesty continues is another assault on America’s core values. (I’ve sent a copy of this e-mail to the White House. The President has promised to make America Great again and to drain the swamp. In my opinion the racism you suffered is such a stain on America’s reputation and quest for an honest judiciary that every American (including the President) must speak out loudly and unequivocally [1].

The assault on America’s core values and your personal rights, privileges and liberties is very disturbing, equally disturbing is the fact that the silence is deafening! Where are all civil rights organizations? Where is law enforcement? Where is the 2^nd oldest profession? Where are all the political people who claim to be advocates for justice and civil rights? Where is the hue and cry [2]?

Naturally, we cannot expect that the IARDC, or some law enforcement or civil rights organization et al will feel obligated to do an HONEST INVESTIGATION of the overt racism that you are suffering and have suffered. As you aware, Honest INVESTIGATIONS in Illinois that expose corruption in the judicial branch of Illinois government are in the words of Mr. Larkin (published in the disciplinary proceedings involving Attorney JoAnne Denison) are the functional equivalent of “yelling fire in a crowded theater.” (Ms. Denison publishes a blog MARYGSYKES and therein she published evidence of judicial corruption. In seeking an emergency suspension of Ms. Denison’s law license, Mr. Larkin equated her blog to “yelling fire in a crowded theater” The Illinois Supreme Court apparently agreed and issued an interim suspension of Ms. Denison’s law license followed by a 3-year suspension.

I apologize for my long-winded diatribe – the fact that independently Crain’s Chicago Business made the very same averment that you made, and the corrupt JUDICIAL ELITE could not be bothered to do an independent and honest investigation, infuriates me. The hypocrisy just cannot be reconciled or shoved under the rug.

Ken Ditkowsky

[1] I usually suggest that the reader view the averments with suspicion and do an independent investigation to determine the truth or falsity thereof. As a major business publication CRAINS CHICAGO BUSINESS made the very same allegations I do not feel that such a suggestion is not necessary — BUT, here again I invite LAW ENFORCEMENT to do an independent investigation and find out if Judge **** was indeed the member of the Board of Directors of the defendant (a defendant in her courtroom), if her brother was a member of the law firm representing the defendant, and if Judge ***** even denied the allegation.

[2] The fact that Mr. Larkin, the administrator of the Illinois attorney disciplinary Commission (IARDC) would seek an interim suspension of your law license was obscene. The fact that the Illinois Supreme Court would grant it, labelling your compliance with Rule 8.3 and a possible 18 USCA 4 mandatory reporting obligation as a danger to the public smacks of the worst type of corruption. When it appears that the very same individuals and State entities did not find that attorney Seth Gillman was a danger to public (until it was disclosed that he was co-operating with the USA in the Medicare/health care Fraud cases) just adds fuel.

Ken Ditkowsky

From Joanne;

Rest assured that none of myself, Ken or Lane are going to betray any of you and recant and say we are sorry about reporting corruption to the authorities and publishing it on this blog. If it means no license, so be it. We have far better morals and ethics than what is going on at the ARDC and the Illinois Supreme Court. If we do not stand up against this Fraud on the Court and protect the public, then who will?

Joanne

https://www.washingtonpost.com/local/this-87-year-old-dc-woman-just-made-it-easier-for-you-to-keep-your-independence/2018/06/26/92636ce6-7962-11e8-80be-6d32e182a3bc_story.html?noredirect=on&utm_term=.949f6e72f1ac

This 87-year-old D.C. woman just made it easier for you to keep your independence

Dolores, 87, sits in her apartment in Northwest Washington on June 22, 2018, discussing how it feel to no longer have a guardian. (Theresa Vargas/The Washington Post)

By Theresa VargasColumnistJune 27 at 7:00 AMEmail the author

The 87-year-old wore a silk dress she had sewn herself. The bright blue fabric featuring yellow, turquoise and lavender flowers pulled at the eyes, and against it, the pale pink stones of her necklace seemed a conservative choice. But that’s not why she wore it.

With a smile, she explained that she had picked the beads less for the statement they made than for the promise they held.

“They’re supposed to help you get a boyfriend,” she said, laughing.

When the woman tells people she is not far from 90, they show genuine surprise. She has not yet let her hair turn white and she speaks with a well-earned wit. She also takes care of most of her needs by herself, getting dressed on her own, taking the right amount of medications as needed and making appointments that she gets to herself by using public transportation. She recently enrolled in a college class after deciding she wants to learn Italian.

Each of these details matters, because it speaks not only to her personality but also to her capabilities. Despite all that, she was deemed an “incapacitated individual” — unable to make choices for herself. But that changed this month.

The octogenarian is the first senior citizen in the District to convince a court to terminate a guardianship placed on her in favor of “supported decision-making.” She and her attorneys successfully argued that with help from people in her life, she could make her own decisions and did not need a court-appointed guardian to do that for her.

Jenny Hatch and her attorney, Jonathan Martinis, celebrate outside the Newport News Circuit Court building on Aug. 2, 2013, after a judge sided with her in her bid to live without guardianship. (Steven Turville/For the Washington Post)

Guardianship is often associated with people who develop or are born with intellectual disabilities. But this case shows why it should matter to everyone. As we age, and the lucky among us will, we all risk losing what we value most: the ability to choose how we live.

Putting legal protections in place will ensure that we have to give that up only when it is absolutely necessary.

[Guardianship case in McLean illustrates lack of regulation for those caring for the elderly]

“I felt very annoyed by having someone else taking care of everything,” said the woman, who for privacy reasons spoke on the condition that she be identified only by her middle name, Dolores. “I am the boss. I can do whatever I need to do.”

Her case marks the first time that the District’s supported decision-making law, which was passed in May, has been cited in court to help a resident regain independence. Most of us have friends or relatives we turn to for advice. This is the same as that — but more. The D.C. law formalizes those relationships and requires institutions and organizations to recognize the role of people who serve in those supportive positions. The District is only the fourth jurisdiction in the country to pass the law, after Texas, Delaware and Wisconsin. (Virginia and Maryland — are you listening?)

A sign of protest made by Jenny Hatch was once hanging on her bedroom wall at the group home where she was forced to live. (Rich-Joseph Facun/For The Washington Post)

“You’re a pioneer in many ways,” Morgan Whitlatch, the legal director for Quality Trust for Individuals with Disabilities, which handled Dolores’s case, told her recently as we sat in her apartment in Northwest Washington. “You weren’t scared to fight.”

“I had to fight against everybody,” Dolores replied.

In 2015, Dolores was facing possible eviction from a subsidized senior building after falling behind on her rent, according to court documents. Her landlord agreed to work out a payment plan if she was assigned a guardian to help her with her finances, and so she agreed to one.

But once she regained financial stability, she asked her guardian to file a letter with the court saying she no longer needed him. When she realized he failed to do that, she went to the court on her own and wrote a complaint.

She also called AARP, and the organization directed her to Quality Trust.

Years earlier, Quality Trust had handled a case in which the stakes also involved an individual’s independence. A 29-year-old woman with Down syndrome named Margaret “Jenny” Hatch had fought in a Virginia court against a guardianship request by her parents. They wanted her to remain in a group home, supervised and protected. She wanted to move in with friends and continue working at a thrift shop they owned.

[Virginia woman with Down syndrome seeks power to live the way she wants]

When the judge denied her parents’ guardianship request in August 2013, Jenny cried and exclaimed, “Oh my God. I’m so happy to go home today. I deserve it. It’s over. My God, it’s over.”

Her lawyer, Jonathan Martinis, declared, “For anyone who has been told you can’t do something, you can’t make your own decisions, I give you Jenny Hatch — the rock that starts the avalanche.”

Dolores didn’t know it, but she was swept into that avalanche. Her case was handled through the Jenny Hatch Justice Project, which is run through Quality Trust and funded by the DC Bar Foundation to assist low-income District residents.

“For me, this is exciting because this is groundbreaking,” Whitlatch told Dolores that day at her apartment. “I hope this is going to transfer over to how we treat older adults. You being able to have this fight means maybe they won’t have to fight as hard.”

For Dolores, the court’s decision has simply meant she can now do what she has always done: take care of herself.

When she was 5 years old and growing up in South America, she said her parents used to put her on a train with her brothers, who were 4 and 6, and told her to watch them until they arrived at their grandparent’s house three hours away.

Later, when she moved to the United States, she worked for the State Department and then handled bilingual translations for several government agencies, including the Library of Congress and the Labor Department.

Dolores recognizes that she is not able to do everything alone now. But she said that for every problem she encounters, she knows whom to call. She has a person who helps her when she has health insurance issues and one who helps when she has medical questions. Recently, after someone stole her wallet, she knew exactly who could help her get a new Metro card.

“It makes you feel powerful to be in charge of your own life,” she said. “You can have a lot of help everywhere, but you are your own boss.”

Still, she said, she worries about the future, about whether one day she will be told that she can no longer live alone in her apartment.

She knows all too well what many of us, thankfully, have not yet had to learn — the suddenness with which life can change.

https://www.nytimes.com/2018/06/18/nyregion/new-york-today-manhattan-federal-court.html

New York Today: It’s Corruption Trial Season in NY

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Alain E. Kaloyeros leaving federal court in 2016.CreditChristian Hansen for The New York Times

By Alexandra S. Levine

Good morning on this toasty Monday.

The weather’s heating up, and so are our courts.

Two major corruption trials are set to begin this week in New York, both featuring defendants who have worked closely with Gov. Andrew M. Cuomo.

“It’s been the season for public corruption trials in the Manhattan federal court,” said the New York Times reporter Benjamin Weiser. He noted that these will be the third and fourth major corruption trials in just six months in the same court.

In March, one of the governor’s former top aides, Joseph Percoco, was found guilty in a corruption trial. And in a widely watched retrial in May, Sheldon Silver, the former State Assembly speaker, was convicted of corruption for the second time. Mr. Silver had long been one of the so-called “three men in a room” in Albany, who were said to control decision-making in the capital. Mr. Cuomo was another.

Here’s what you need to know about the upcoming trials:

One: The trial of Alain E. Kaloyeros, an ex-ally of Mr. Cuomo’s and the former president of the State University’s Polytechnic Institute. At his peak, Mr. Kaloyeros, a flamboyant physicist whom the governor once called “New York’s secret weapon,” had wide sway over the Buffalo Billion, the governor’s signature upstate economic development program.

The latest: The government accused Dr. Kaloyeros of bid-rigging — steering state contracts to an upstate firm and developer that had made significant contributions to Mr. Cuomo’s re-election campaign. He has pleaded not guilty.

What’s next: The trial begins today at federal court in Manhattan.

Dean G. Skelos.CreditAndrew Renneisen for The New York Times

And two: The retrial of Dean G. Skelos, the former Republican majority leader of the New York State Senate, who forfeited his seat in 2015 after being convicted on federal corruption charges. Along with Mr. Cuomo and Mr. Silver, he had been the third of the “three men in a room.”

The latest: Both Mr. Skelos’s and Mr. Silver’s convictions were overturnedin 2017, by appellate panels that cited a Supreme Court decision that narrowed the legal definition of corruption.

What’s next: Mr. Skelos’s retrial begins Tuesday in federal court in Manhattan.

Sometimes when mothers or fathers lose custody, and were the primary caretaker, they may be an immigrant with a green card who is no longer employable. However, these persons are not to become public charges, but their sponsor must pay them 125% of the poverty level annually to ensure they do not become public charges.

Read on for more caselaw and information:

From: http://www.i-864.net/blog/suing-864-december-2016-update

We are publishing an update to our 2012 article, Suing on the I-864, Affidavit of Support. That original article, along with a February 2014 update, is available on our website here. The current article reviews all United States case law concerning enforcement of the I-864, going back to publication of the last article. Together the three articles review every case throughout the United States to consider enforcement of the I-864.

Download the article here: Suing on the I-864 – December 2016 Update

Article text:
This is the third in a series of articles summarizing all available case law regarding enforcement of the Form I-864, Affidavit of Support.[1] The previous articles are freely available for download.[2] As with the last piece, the current one is intended as a “pocket part” update to issues discussed in the original 2012 article.

I-864 beneficiaries have continued their strong track record of successfully enforcing support rights in both state and federal courts. There is no longer any question whatsoever as to whether they have the standing to do so. The issues over which courts now disagree are subsidiary ones. For example, what types of financial benefits – housing subsidies, gifts, and so forth – offset a sponsor’s support obligation?

Most immigration attorneys are uninterested in civil damages litigation, so why read further? Because we represent I-864 sponsors. Indeed, immigration attorneys commonly represent both a U.S. citizen/resident petitioner and an intending immigrant family member. The same attorney may also represent an I-864 joint sponsor in the same matter, though we argue that is unwise.[3] It is one thing to have a vague sense that the I-864 is an enforceable contract. But it is another matter altogether to see I-864 litigation in action. The cases discussed below may prompt some practitioners to double-check their procedures and advisories when working with I-864 sponsors.

Contract Issues
For would-be I-864 plaintiffs, one of the first orders of business is to acquire a copy of the Form I-864 executed by the sponsor. Often, the beneficiary does not possess a copy of the I-864 as filed. That is hardly a surprise. If the foreign national went through consular processing for an immigrant visa, the sponsor – and not the beneficiary – would have filed the I-864 directly with the National Visa Center. And if the foreign national adjusted status, it is often the English-speaking petitioner who takes on the primary logistical role in submitting the application packet.

If the parties were assisted by an attorney, of course, that firm must release the I-864 to the foreign national upon request, as it was drafted on her behalf. The I-864 is submitted in support of the foreign national’s adjustment or visa application, not in support of the underlying I-130 petition. This author recently filed a complaint for unauthorized practice of law in Arizona where a notario – a former Immigration and Customs Enforcement officer, to boot – refused to return an adjustment file to a foreign national. A replevin action could be used to claw back a copy of the form, but this would hardly seem worth the effort.

As noted in prior articles, the executed Form I-864 can be requested through a Freedom of Information Act (FOIA) request. Other practitioners have reported that such requests have returned Forms I-864 that are either fully or partially redacted. That result is arguably consistent with protections of the U.S. sponsor’s personal information under the Privacy Act. In this author’s experience, however, FOIAs submitted by the foreign national typically are returned with an unredacted copy of the I-864. Regardless of whether this is erroneous or not on the part of USCIS, it has proved an expedient means of acquiring the signed contract.

May the beneficiary compel the sponsor to cooperate in a FOIA request to obtain the signed I-864? Surprisingly, at least one case suggests the answer could be no. Echon v. Sackett was not I-864 enforcement litigation, but rather a federal district court action against an employer, alleging violations of anti-trafficking and employment laws.[4] In the course of contentious discovery, the plaintiffs sought copies of Forms I-864 filed by the employer-defendant. Though unartfully presented, it appears the plaintiffs sought an order compelling the defendants to sign a FOIA request for the Forms I-864, after the defendants denied possessing the documents. After noting that Fed. R. Civ. Pro. 34 does not “expressly authorize a court to order a party to sign a release concerning any kind of record,” the Court advised that the plaintiffs should first seek the documents through their own FOIA request, or else via a Rule 45 subpoena.[5]

In this author’s experience, sponsor-defendants have readily agreed to cooperate with a FOIA request to acquire the Form I-864 filed by a sponsor. A plaintiff, of course, may compel production of a document that is within the “possession, custody, or control” of a defendant.[6] Since signing the FOIA request is hardly burdensome, and the document is highly relevant to the claims, opposing litigants generally have not resisted on this issue.

Duration of obligation
It is said that bad facts make bad law. Perhaps the only thing that makes worse law is pro se litigants.[7]

In a poorly guided decision, a federal district court for New Jersey held that I-864 obligations terminate once a foreign national has prevailed in an I-751 waiver petition. In Shah v. Shah, a pro se foreign national prevailed at a jury trial, demonstrating that her sponsor had failed to fulfill his obligation under the Form I-864.[8] The jury, however, appeared to calculate damages based on a cutoff date of when the foreign national won approval of her I-751 petition, which was filed as a waiver without the sponsor’s assistance.

The plaintiff, pro se, moved for a new trial, arguing that the I-751 approval did not terminate the sponsor’s obligations. Without further explanation, the Court stated:

After Plaintiff received a one-year extension from USCIS, her status was set to expire on May 25, 2014. But upon Plaintiff’s petition, USCIS adjusted Plaintiff’s immigration status to that of lawful permanent resident on December 13, 2013. Because Plaintiff’s status adjustment was not based upon Defendant’s Form I-864, her status adjustment terminated Defendant’s obligation to support Plaintiff.[9]

These statements are poorly guided – likely in the literal sense that the litigants gave the Court little sound research on which to base its ruling.

The error is this: an I-751 petition is not an application for “status adjustment.” An I-751 petition, of course, is exactly what it says on its face – a petition to remove the conditions placed on an individual who is already a lawful permanent resident (LPR). That is a distinction with a difference.

Under the plain language of federal regulations conditional residents are LPRs.[10] Unless otherwise specified by law, a conditional resident possesses all “rights, privileges, responsibilities and duties which apply to all other lawful permanent residents.”[11] As the USCIS Policy Manual states in its introductory sentence to conditional residency, conditional residents have “been admitted to the United States as LPRs on a conditional basis for a period of two years.”[12] For a foreign national filing an I-751 petition, LPR status is hers to lose, not to gain.[13]

In other words, once a foreign national has acquired conditional LPR status based on an I-864 filed by her sponsor (or a joint sponsor), she has already acquired LPR status, period. All that is left is to remove the conditions placed on her LPR status, but there is no “other” permanent residency status to which she could “adjust.” When a conditional resident gets an I-751 approved – whether via a joint petition or waiver – she is not transitioning into a new residency status. The pro se plaintiff in Shah was an LPR from the day she first received conditional LPR status, and she maintained that same LPR status through the I-751 petition process. Shah was wrongly decided and will hopefully not mislead other courts.

The sponsor’s obligation under the I-864 terminates when the beneficiary acquires 40 quarters of work under the Social Security Act.[14] But whose work quarters count towards that threshold? In the California case of Gross v. Gross, a pro se plaintiff argued that her husband’s quarters of work did not count towards the 40 quarters.[15] Following the plain text of the Form I-864 and underlying statute, the Court disagreed. The statute specifically provides that in counting quarters of work, the beneficiary shall be credited with “all of the qualifying quarters worked by a spouse of such alien during their marriage and the alien remains married to such spouse or such spouse is deceased.”[16] The Form I-864 itself, official instructions, and statute all refer to work quarters with which the beneficiary may be “credited” rather than those she has earned.[17] As the Gross Court concludes, it is clear that a beneficiary can be credited with work quarters earned by her spouse. Note, however, that this does not necessarily resolve the issue of whether quarters can be double-stacked. If both the beneficiary and sponsor are working, it is not obvious that two work quarters should be simultaneously counted towards the 40-quarter threshold.[18]

In a published New Jersey case, an appeals court followed the plain language of the Form I-864 to hold that support obligations end upon the death of a sponsor. Fox v. Lincoln Financial Group was primarily a state law case about whether marriage should automatically cause one spouse, by operation of law, to become the beneficiary of the other’s life insurance policy.[19] When a U.S. citizen spouse died, his foreign national spouse sued the life insurance company, and argued that the Affidavit of Support offered a justification for recovering against the policy. The trial and appeals courts rejected that contention, citing the plain language of the Form I-864, stating that the obligation ends upon the death of the sponsor.[20]

It is important to distinguish, however, between termination of the sponsor’s obligation and the viability of claims accrued up to the date of termination. If a sponsor has failed to provide support for a period of one year, for example, and then dies, his estate will remain liable for support arrears up to the date of his death. While the estate is not liable for future support – since the obligation has terminated – the beneficiary does not lose the ability to assert claims that accrued prior to the sponsor’s death.

Under the plain language of the Form I-864, the sponsor’s obligations commence when the beneficiary gains lawful permanent residency based on the sponsor’s affidavit. Of course, if the Affidavit is signed but never filed, then the sponsor never becomes obligated under the contract.[21]

Defenses
Sponsor-defendants typically answer I-864 lawsuits by pleading a kitchen sink’s worth of affirmative defenses.[22] In the author’s experience, these often include defenses that seem hard-pressed to pass even the good faith requirement.[23] The notion, for example, that an I-864 beneficiary “lacks standing” to maintain a suit against a sponsor is simply frivolous. Nonetheless, courts will typically decline to strike even questionable affirmative defenses, at least during early stages of litigation.[24]

Damages
In December 2016 the North Carolina Supreme Court handed down one of the most important I-864 enforcement opinions in years. In Zhu v. Deng the Court held squarely – albeit with little discussion – that the duty to mitigate does not apply in I-864 enforcement cases.[25] The sponsors in Zhu argued that their support obligation should be offset by income that the plaintiff could be earning, were she not voluntarily unemployed. But the state Supreme Court disagreed. Instead, it followed a seminal Seventh Circuit opinion authored by Judge Posner. In Liu v. Mund, Judge Posner opined that the congressional purpose behind the I-864 is to ensure that the sponsored immigrant has actual support when needed.[26] That purpose would be thwarted if courts were to engage in speculation about whether a sponsored immigrant could be working but was electing not to. With little discussion of its own, the Zhu opinion favorably quotes the reasoning in Liu.[27]

Damages in I-864 enforcement litigation are easy to calculate – at least in principle. The plaintiff is entitled to recover 125% of the Federal Poverty Guidelines (FPGs), less any actual income she has received.[28] Courts continue to work through the issue of what financial sources qualify as income for purpose of calculating damages. The resulting decisions are a hodgepodge that employ no consistent standard to define what is and is not income for purposes of I-864 lawsuits.

In Dahhane v. Stanton a federal judge for the District of Minnesota opined on several financial sources, led by the dubious guidance of pro se litigants[29] The Dahhane Court correctly ruled that financial payments from the sponsor to the beneficiary should count against the sponsor’s support obligation, regardless of whether they were designated as support payments under the I-864.[30] Yet in reaching that conclusion, the Court unnecessarily opined that the I-864 regulations in Title 8 C.F.R. do not define income for purposes of calculating damages under the I-864.

Under those regulations income means income as defined “for purposes of the individual’s U.S. Federal income tax liability.”[31] The Court reasoned,

8 C.F.R. § 213a.1 provides definitions for use in determining whether someone is eligible to sponsor an immigrant; the regulation has nothing to do with calculating whether an immigrant has been supported at 125 percent of the federal poverty level.

The Court offers no explanation for why 8 C.F.R. § 213a.1 does not provide the definition of income for purposes of damages calculations. Why go this far? Instead, the Court could simply have held that a financial transfer from sponsor to beneficiary counts towards the sponsor’s support obligation regardless of how it is characterized.

Bizarrely, the Dahhane Court next held that money brought by the beneficiary from his home country qualified as income for purposes of offsetting damages. This result is jarring, as the Court does a 180-degree flip on its rationale applied earlier in the same decision regarding the import of IRS guidelines. The Court noted that the I-864 regulations permit the sponsor to list the beneficiary’s assets for purposes of demonstrating financial sufficiency to qualify as an I-864 sponsor. Thus, the Court reasoned, $3,000 that the beneficiary brought from Morocco counts as income provided to him by the sponsor for purposes of damages calculations.

There are two problems with this. First, the Court had just reasoned that income defined for initial sponsorship purposes is not the same thing as income for purposes of damages calculations. Second, income and assets are of course separate concepts under the I-864. A sponsor need not report his own assets – let alone the assets of the beneficiary – if his income meets the required threshold. In any event, why should reported assets have anything to do with whether a sponsor s fulfilling duty to provide income? The Court gives no reason why the beneficiary’s assets, which might or might not have been reported on the I-864, later qualifies as an income source for a later support period.

The Zhu case from North Carolina reached the opposite and correct approach regarding assets owned by an I-864 beneficiary.[32] The sponsors in Zhu argued that their support obligation should be offset by the beneficiary’s share of monetary wedding gifts. Disagreeing, the opinion states:

Assets do not amount to income, and a judgment, even a monetary one, is not necessarily an asset for purposes of income. [. . .] Notably, plaintiff-husband listed $150, 000.00 under a heading titled “Assets of the principal sponsored immigrant” on his Form I-864A. This fact had no bearing or impact on the government’s requirement that contracts of support were necessary for [the plaintiff-beneficiary] to become a permanent resident, and nor should a judgment against defendant-parents in the amount of $67, 620.

This approach is both clean and correct. The sponsor’s obligation is offset by the beneficiary’s income. But assets are not income under any normal understanding of the terms.

Departing from other federal courts,[33] the Dohhane Court next held that child support payments to the Beneficiary’s children qualified as income for purposes of the I-864 damages calculation.

Finally, the Dohhane Court correctly concluded that federal income tax refunds paid to the Beneficiary do not qualify as income. Since “[a] tax refund is merely the return of the recipient’s money,” it would be unfair to count it twice, “once when it is received and a second time when it is refunded.” Similarly, in Villars v. Villars, the Supreme Court of Alaska held that an Earned Income Tax Credit does not constitute income for purposes of offsetting I-864 support obligations.[34]

Other tribunals have reached the opposite conclusion regarding reliance on IRS guidelines. In Nasir v. Shah, another U.S. District Court held that the immigrant-beneficiary’s unemployment insurance payments qualified as income, following the defendants’ citation to Internal Revenue Service (IRS) guidelines characterizing such payments as taxable income.[35]

Reaching exactly the opposite conclusion from Dohhane, in Toure-Davis v. Davis a federal court for the District of Maryland held that IRS guidelines do define income for purpose of I-864 damage calculations.

In determining whether a sponsor has sufficient income to support a sponsored immigrant at a minimum of 125 percent of the Federal poverty line, Form I-864 utilizes the [IRS] rules. This court therefore will consult the IRS rules regarding whether a property settlement incident to a divorce is treated as income.[36]

Relying on that standard, the Court in Toure-Davis held that a divorce property settlement did not constitute earned income, and therefore did not offset the Sponsor’s I-864 support obligation.

But in the very same memorandum decision, the Toure-Davis Court failed to rely on the IRS guidelines. With virtually no discussion, the Court held that the defendant was entitled to an offset for the value of free housing provided to the plaintiff by an individual. The Court reasoned that the free housing was the equivalent of receiving a housing subsidy, and also that it was given as a “bartered service” in exchange for the plaintiff’s cooking and cleaning.[37] But wait, is couch-surfing now a form of income taxed by the federal government? If the divorce settlement in Toure-Davis was not income – because the IRS guidelines say it was not – why is free housing income, when its value is not taxable as income?

The damages to which an I-864 plaintiff is entitled depends on her FPG household size, and courts have struggled to define that term. In Erler v. Erler the Ninth Circuit has set forth a helpful bright-line rule for determining household size for the purpose of I-864 damages.[38] After separation, the beneficiary moved in with her adult son. Her son was employed, earning income that exceeded 125% of the FPG for a household of two. The evidence showed that the beneficiary’s son used some of his income to pay rent and living expenses for both himself and the beneficiary.

The beneficiary sued for support under the Form I-864. Although the trial court determined that the obligation survived divorce, it held that the sponsor owed no support.[39] The trial court “imputed” the son’s income to the beneficiary. Because his income exceeded 125% FPG for a household of two, the beneficiary was above the required support level and the sponsor owed nothing

First, the Ninth Circuit squarely held that the Form I-864 is an enforceable contract. The Ninth Circuit then went on to the issue of household size. The Court rejected the trial court’s view that the son’s income should be imputed to the beneficiary. As had the trial court, the Ninth Circuit found that the I-864 statute and regulations did not define household size for enforcement purposes. Note the parallel with the IRS guidelines issue discussed above. There, courts disagreed as to whether rules defining income for determining eligibility of a sponsor also defined that term for purposes of damages calculations.

The Ninth Circuit rejected the idea that household size could be measured by the actual “post petition” household.[40] Instead,

…in the event of a separation, the sponsor’s duty of support must be based on a household size that is equivalent to the number of sponsored immigrants living in the household, not on the total number of people living in the household.

In other words, the operative household size is one, plus any other immigrants who were also sponsored by the same Form I-864.

The Court acknowledged that this approach will sometimes seem to give a windfall to the beneficiary. In Erler, for example, the beneficiary had access to some resources from her son, even though she was also entitled to a full support (125% FPG) from Sponsor. But the Court reasoned that a sponsor should have anticipated that he might be liable for the amount of support. Moreover, the court reasoned, it would be unfair to foist the support of the immigrant on – in this case – her son, when in fact it was the sponsor’s duty to provide the support.

Although Erler is helpful in setting a bright line rule, it leaves unanswered questions. At the top of the list: what happens if the beneficiary has a child? Under Erler, because that child is not a sponsored immigrant she will not qualify as a household member. The core purpose of the I-864 is to ensure that a sponsored immigrant has a bare-bones safety net, at the sole expense of the sponsor. The Erler approach will fall short of that goal where a sponsored immigrant has to use her resources to provide for a U.S. citizen child. It appears that the beneficiary’s best strategy in that situation would be to pursue child support in addition to I-864 support.[41]

May a beneficiary recover damages for periods of time when she is outside the United States? At least two courts have answered yes.

In Villars v. Villars a sponsor argued that he was entitled to an offset for any months the beneficiary spent abroad in Ukraine.[42] The Court noted that no language in the statute prevented the beneficiary from recovering support for time spent abroad.[43] The Court then appeared to hold that the beneficiary was not categorically barred from recovering support for time spent abroad. Rather, the Court said that the issue was whether the beneficiary had received support from family members during that period, which amounts would be counted as an offset against the sponsor’s support obligation.[44]

The Villars Court’s view on family assistance is problematic: that a sponsor may receive an offset if a beneficiary’s family pitches in for her wellbeing. The entire congressional purpose of the Affidavit is to mandate that the sponsor serve as the intending immigrant’s financial safety net. If the sponsor refuses to support the beneficiary, presumably she must find resources somewhere to survive. In any conceivable hypothetical – except for an immigrant living off her own vegetable garden – the beneficiary must receive some form of financial resources during the time a sponsor has failed to provide support. If friends, relatives or community groups step in to provide for the beneficiary’s basic needs, why should the sponsor receive a windfall?

Likewise, in Toure-Davis v. Davis the Court held that the I-864 beneficiary was entitled to recover support for a period of time spent in her home country of Ivory Coast.[45] The only question was whether financial sources received during that period of time served to offset the defendant’s support obligation.

I-864 beneficiaries typically seek to recover damages from the date of their separation with the sponsor, who was typically also the spouse. Nothing, however, prevents a plaintiff from recovering for the period of time when she was residing with the sponsor. It is simply that the factual assessment may be more complex, as to what contributions were made to joint household expenses. This issue was noted by a federal judge for the Western District of Wisconsin, who requested a further factual showing on the issue from the parties.[46]

In I-864 enforcement cases, plaintiffs may seek both recovery of support arrears and also an order of specific performance, mandating that the sponsor fulfill his support duty until the terminating conditions described by the contract. Courts have proved willing to enter such orders of specific performance.[47] Since the plaintiff-beneficiary’s entitlement to I-864 support is contingent upon lacking other income, some form of periodic accounting is appropriate to demonstrate to the defendant that support is required. It has been the author’s practice in settlement negotiations to propose that the plaintiff provide monthly accounting to the defendant, certifying any earned income and that she has not become a U.S. citizen or otherwise triggered a terminating condition under the contract.

Both the Form I-864 itself and underlying statute make very clear that a beneficiary may recover attorney fees incurred in successfully enforcing the contract. In Matloob v. Farham, the plaintiff prevailed after a one-day bench trial and sought just under $40,000 in attorney fees.[48] The Court applied a 10% downward reduction on the basis of some duplicative work between the two lead attorneys, and because the Court believed that the 15 hours spent on the relatively short summary judgment brief was excessive. Notably, the Court acknowledged that although the fee award was nearly four times the amount in controversy, the award was appropriate given the undesirability of the case, and the uncertainty as to whether any fee award could be collected.

The defendants in Matloob were pro se and it is unclear how actively they defended the litigation. For example, the fee award motion was not opposed. Defendants in I-864 enforcement actions often plead numerous affirmative defenses, including the fact-intensive defense of fraud. This can lead to extensive discovery that substantially increases litigation expense. Although the fee award in Matloob was approximately four times the damages sought, a substantially higher award can be appropriate when the litigation is actively defended.

If the sponsor prevails, may he recover attorney fees? In Yaguil v. Lee, brought in the Eastern District of California, the sponsor won dismissal on the grounds of res judicata.[49] The sponsor argued that under a California statute, the attorney fee provision in the Form I-864 and underlying statute should be construed as authorizing an award for the prevailing party, not just the beneficiary. The Court disagreed. It reasoned that the lawsuit was grounded in a federal cause of action authorized by the statute underlying the Form I-864. For that reason, federal rather than California law governed the claim, and the California fee statute simply did not apply. Next, the Court reasoned that the federal statute could not be construed to authorize a prevailing party fee award, as the plain language provides for an award to only the beneficiary, not the prevailing party.[50]

Procedural Issues
The lengthy timeline of litigation presents a vexing challenge for I-864 beneficiaries. Plaintiffs eligible to recover under the Affidavit will, by definition, be impoverished and without financial resources. How can the beneficiary meet her basic needs while litigation is pending? At least one I-864 plaintiff has succeeded in obtaining a preliminary injunction, enjoining the sponsor to comply with the support obligation pendente lite.[51] Financial loss by itself does not normally meet the irreparable harm standard required by most rules governing preliminary injunction. But a California trial court agreed with an I-864 plaintiff that a damages award, by itself, would not “adequately compensate” her, presumably due to the harm she would suffer while being left without means to meet her most basic needs.[52]

As mentioned, I-864 plaintiffs have few resources. For that reason, courts readily permit I-864 plaintiffs to proceed in forma pauperis (IFP).[53] Attorneys sometime mistakenly believe that a plaintiff may not proceed IFP if she is represented by counsel, but in most jurisdictions there is no such rule. Indeed, the author has successfully recovered attorney fees for submitting IFP petitions on behalf of I-864 plaintiffs.

Federal Court
Under the bankruptcy code “domestic support obligations” (DSOs) are exempt from discharge.[54] As mentioned in prior articles, the only bankruptcy cases to consider the issue have held that support under the Form I-864 is a non-dischargeable DSO.[55] Another bankruptcy judge has reached the same conclusion, where a state family court support order was predicated at least partially on the Form I-864.[56]

Federal courts have continued to exercise caution when I-864 enforcement actions are pursued in parallel with state court dissolution proceedings.[57] In one case in the Southern District of New York, for example, a pro se I-864 beneficiary filed a district court action while her dissolution was still proceeding.[58] The Court stayed the federal action under the Colorado River abstention doctrine,[59] and refused to lift the stay where it appeared that the state court was “aware of the Form I-864 issue and was considering it in the divorce proceedings.”

State Court
[Reserved]

Maintenance (“Alimony”) Orders
May a beneficiary use spousal maintenance as a vehicle to enforce the Affidavit of Support? The answer varies from state to state.[60] In Matter of Khan, this author represented a Washington respondent on appeal from a divorce trial.[61] The respondent argued that the trial court had abused its discretion by acknowledging the enforceability of the Affidavit of Support but ordering only short-term spousal maintenance. The Court of Appeals disagreed, holding that the Form I-864 obligation did not fall within any of the statutory bases for ordering spousal support.[62] Instead, the Court acknowledged that the Affidavit was enforceable and instructed that the beneficiary could maintain a “separate action” to enforce her rights.[63]

The approach taken by the Khan Court is frustrating because of the tremendous inefficiency it imposes on the parties and judicial system. In Khan, the trial court partially incorporated the I-864 obligation into a maintenance order, and the sponsor acknowledged to the Court of appeals that he was obligated under the Affidavit.[64] The divorce proceeding could have been used to define the obligation and send the parties on their way. Instead, the beneficiary was forced to bring a separate lawsuit, which resulted in a $104,000 judgment against the Sponsor. The Sponsor was ordered to pay approximately $60,000 in attorney fees to the beneficiary, and presumably paid his own counsel a substantial sum.

In a Kansas case, a sponsor argued that spousal maintenance should be capped at the level provided for in the Affidavit of Support. In Matter of Dickson the Court rejected that proposition, reasoning that the Affidavit of Support and maintenance statute serve different purposes:

The obligation undertaken by signing an 1-864 affidavit is to ensure that the immigrant will not become a public charge. A Kansas court awards maintenance, on the other hand, to provide for the future support of the divorced spouse, and the amount of maintenance is based on the needs of one of the parties and the ability of the other party to pay.[65]

Indeed, this author is at a loss as as to what language in the Form I-864 or federal statute could be construed to imply a ceiling to spousal maintenance.

Issue Preclusion, Claim Preclusion
Procedural doctrines prohibit the litigation both of matters that have already been actually litigated and that could have been litigated. Courts have continued to allow beneficiaries to proceed with enforcement cases when the Affidavit of Support was raised – but claims not fully adjudicated – in a preceding divorce case. In Du v. McCarthy, a beneficiary attempted to raise the Form I-864 during a divorce trial, but was barred from offering testimony as the matter had not properly been brought before the court.[66] A magistrate judge for the Northern District of West Virginia held that because the matter had not been correctly raised in the divorce proceeding, there was no final judgment on the matter and the beneficiary was not barred from bringing her subsequent enforcement action.

By contrast, in Yaguil v. Lee a court for the Eastern District of California dismissed a complaint on res judicata grounds.[67] The beneficiary disputed only whether her federal complaint presented claims that were identical to those she previously raised in divorce proceedings. In the divorce case, the Beneficiary had presented the Form I-864 at a settlement conference, and asserted without evidence that the matter had later been “dropped.” From the order in Yaguil it is fully unclear what came of the beneficiary’s efforts to raise the Affidavit of Support in the divorce proceedings. Regardless, Yaguil imposes a harsh result where a beneficiary may have raised the Affidavit in an ineffective manner in the preceding divorce case. It is unclear whether the beneficiary in Yaguil made a full-throated presentation of her rights before the family law court, or simply decided to enforce them in a different forum.

So should the beneficiary play it safe by simply not mentioning the Affidavit in divorce proceedings? Not so fast. The doctrine of claim preclusion can bar litigation of claims that could have been raised in an earlier proceeding. Courts remain split about the proper forum to enforce I-864 rights, some holding that they may be enforced via spousal maintenance.[68] If a beneficiary fails to raise the Affidavit in a divorce case, the sponsor could later argue that she should have resolved the matter there.

When counsel becomes involved in matters early enough, one option is to file the Form I-864 claim while the divorce case is still pending. If done this way, the Form I-864 case should be brought in state court, as a federal court would likely abstain from the matter while the divorce case is pending.[69] It would seem difficult for the sponsor to argue that the beneficiary should have used a divorce proceeding to enforce the Affidavit if she had already brought a separate contract action to do so.

Unresolved issues
Prenuptial agreements
In Erler v. Erler – discussed above – the Ninth Circuit weighed in on whether a prenuptial agreement may waive support under the Form I-864.[70] The Ninth Circuit affirmed the trial court’s view that “neither a divorce nor a premarital agreement may terminate an obligation of support.”[71] This statement is important, since courts have disagreed about whether or not a sponsor and beneficiary can contractually agree to waive enforcement of the Form I-864. The Ninth Circuit now joins a majority of courts in holding that a premarital agreement cannot waive a beneficiary’s rights under the Form I-864.[72] The waiver issue received no analysis from the Ninth Circuit, and there would appear to be a question about whether the Court’s statement is dicta. But in any event, Erler is another in a line of cases that at least strongly weigh in favor of the view that I-864 enforcement cannot be waived.

Taken at face value, Erler stands for an even more extreme proposition: no I-864 beneficiary could ever enter into an enforceable settlement agreement of her claims against a sponsor. The trial court in Erler rested its decision, in part, on the view that a beneficiary could not waive support rights, since the sponsor’s contract is with the federal government, not the beneficiary.[73] In the experience of this author, many claims against I-864 sponsor are resolved either prior to filing a lawsuit, or at least in pre-trial stages of litigation. A typical move is for beneficiary is to release the sponsor from all future claims for support, either in exchange for a lump-sum payment or structured payments over a specified period of time. For such a settlement to function, the beneficiary must possess the legal authority to release the sponsor from support claims. In Erler the Ninth Circuit seems to say, “only five events can terminate the I-864 support duty, and premarital agreements are not one of them.” Well, neither are settlement agreements. The Court, of course, was not presented with the enforceability of a litigation settlement agreement. Yet the decision leaves some added uncertainty on this issue.

In Maryland, a federal district court reached the same conclusion as in Erler, holding that I-864 support rights cannot be waived. In Toure-Davis v. Davis, the sponsor signed a nuptial waiver before signing the Affidavit of Support.[74] The Court held that by subsequently signing the Form I-864 the sponsor modified the nuptial contract. Moreover – as with Erler – Toure-Davis takes the view that I-864 rights are categorically non-waiveable:

In consideration for allowing Defendant’s immigrant wife to seek an adjustment of her status to a legal permanent resident, Defendant pledged to the U.S. Government, as the sponsor, that he will ensure his sponsored immigrant wife is provided for to maintain her income, at a minimum, of 125 percent of the Federal Poverty Guidelines. Defendant voluntarily, knowingly and willingly signed the Form I-864. Defendant therefore cannot absolve himself of his contractual obligation with the U.S. Government by Plaintiff purportedly waiving any right to alimony or support via the ante-nuptial agreement.[75]

As noted in a previous article, official commentary accompanying the Form I-864 regulations specifically stated that support obligations may be waived by a nuptial agreement.[76] The Toure-Davis Court pushed aside that commentary on the basis that it “does not constitute law.”[77]

Interpreting the I-864
Is a lawsuit to enforce the Form I-864 “just” a contact action, or does it also sound in federal law? This issue continues to be a source of confusion. In a federal enforcement case in the District of Minnesota, for example, a pro se plaintiff moved to strike the defendants’ jury demand, arguing that the underlying federal statute does not create a right to trial by jury.[78] Rejecting that argument, the magistrate judge stated clearly that the causes of action were exclusively contractual in nature:

The federal statute, 8 U.S.C. § 1183a, is not the basis for the cause of action, but expressly states that an affidavit must be executed by a sponsor and provides authorization for enforcement of a Form I-864 agreement as a contract. Breach of contract is a claim at law to which the Seventh Amendment right to a jury trial attaches.[79]

The court declined to rule on the motion to strike the jury demand, however, before seeing what claims and affirmative defenses survived discovery and summary judgment.

Conclusion
Litigation continues to deliver consistent and positive results for I-864 beneficiaries. For immigrants who lack access to public benefits, and those with limited job qualifications, support under the I-864 can provide a crucial lifeline. No one gets rich from the Form I-864. But the support mandated by the contract can help an LPR survive while transitioning from poverty to self-sufficiency.

[1] See Greg McLawsen, Suing on the I-864 Affidavit of Support, 17 Bender’s Immigr. Bull. 1943 (Dec. 15, 2012) (hereinafter McLawsen (2012)); Greg McLawsen, Suing on the I-864 Affidavit of Support: March 2014 Update, 19 Bender’s Immig. Bull. 1943 343 (Apr. 1, 2014) (hereinafter McLawsen (2014)). See also Greg McLawsen, The I-864, Affidavit of Support; An Intro to the Immigration Form you Must Learn to Love/Hate, Vol. 48. No. 4 ABA Fam. L. Quarterly (Winter 2015). In this article, as with its predecessors, the female and male pronouns are used when referring to I-864 beneficiary’s and sponsors, respectively. This approach is taken if view of the fact that I-864 plaintiffs tend to be female.

[2] Visit http://www.i-864.net à Resources.

[3] Greg McLawsen and Gustavo Cueva, The Rules Have Changed: Stop Drafting I-864s for Joint Sponsors, 20 Bender’s Immigr. Bull. 1287 (Nov. 15, 2015). Colleagues sometimes mistakenly assume that joint sponsors are never sued for I-864 enforcement. That view is inaccurate. Indeed, the author recently settled such a case.

[4] 14-cv-03420-PAB-NYW (D. Col. May 2, 2016) (discovery order).

[5] Id. (citing EEOC v. Thorman & Wright Corp., 243 F.R.D. 426, 428 (D. Kan. 2007); Bouchard v. Whetstone, No. 09-CV-01884-REB-BNB, 2010 WL 1435484, at *1 (D. Colo. Apr. 9, 2010)).

[6] Fed. R. Civ. Pro. 34 (emphasis added).

[7] See, e.g., Encarnacao v. Beryozkina, No. 16-cv-02522-MEJ (N.D. Cal., June 27, 2016) (order) (issuing summons in I-864 matter after having previously having dismissed the Complaint where it “failed to provide enough facts for the Court to determine whether he could state a cognizable claim for relief”); Du v. McCarty, No. 2:14-CV-100 (N.D. W. Vir. Apr. 16, 2015) (order adopting report and recommendations) (denying pro se Sponsor’s motion to dismiss based on allegation that Form I-864 signature was not his, since such a matter is for the jury).

[8] No. 12-4648 (RBK/KMW) (N. N.J., Oct. 30, 2015).

[9] Id. (emphasis added, internal citation omitted).

[10] 8 C.F.R. § 216.1 (“A conditional permanent resident is an alien who has been lawfully admitted for permanent residence within the meaning of section 101(a)(20) of the Act. . .”).

[11] Id.

[12] USCIS Policy Manual Vol. 12, Part G, Chapter 5(A), available at http://1.usa.gov/1IArtlI (last visited Dec. 28, 2015) (emphasis added). See also 8 CFR § 235.11(c) (The lawful permanent resident alien status of a conditional resident automatically terminates if the conditional basis of such status is not removed by the Service through approval of a Form I-751, Petition to Remove the Conditions on Residence. . .”) (emphasis added).

[13] A conditional resident maintains status as an LPR unless: (1) she fails to timely file her petition for unconditional status; (2) such a petition is denied; or (3) her status is affirmatively terminated by the government. 8 USC §§ 1186a(c)(2)(A) (lack of timely petition), 1186a(c)(3)(C) (petition denied), 1186a(b)(1) (affirmative termination).

[14] Clients and even immigration attorneys sometimes believe that I-864 obligations end after 10 years. That is incorrect. The obligations are terminated after the beneficiary may be credited with 40 quarters of work under the Social Security Act. That threshold could be met in ten years, but not necessarily.

[15] E060475 (Cal. App., 4th Dist., 2nd Div. Aug. 6, 2015).

[16] Id. (citing INA § 213A(a)(3)(A)).

[17] See id.

[18] Cf. Davis v. Davis, No. WD-11-006 (Ohio Ct. App. May 11, 2012), available at http://www.sconet.state.oh.us/rod/docs/pdf/6/2012/2012-ohio-2088.pdf (last visited Nov. 15, 2016) (Singer, J. dissenting) (arguing that double-stacking should not be applied).

[19] 109 A.3d 221 (2015).

[20] Id. at 223, 227-28.

[21] F.B. v. M.M.R., 120 A.3d 1062 (Pa. Super. 2015).

[22] Commonly asserted defenses include (in no particular order): estoppel, statute of frauds, duress, fraud (typically fraud in the inducement), unconscionability, waiver, res judicata, unclean hands, and “equity.”

[23] See Fed. R. Civ. Pro. 11.

[24] See, e.g., Dahhane v. Stanton, 15-1229 (MJD/JJK) (D. Minn. Aug. 4, 2015) (report and recommendation) (refusing to strike affirmative defenses).

[25] No. COA16-53 (N.C. Dec. 6, 2016)

[26] 686 F.3d 418, 422 (7th Cir. 2012).

[27] Id. (“[W]e can’t see much benefit to imposing a duty to mitigate on a sponsored immigrant.”).

[28] See McLawsen (2012) supra note 1 at Section I.C.

[29] No. 15-CV-1229 (PJS/BRT) (D. Minn., Aug. 12, 2016) (Order on plaintiff’s objection to magistrate’s report and recommendations).

[30] Id. (“[Beneficiary] argues that, if [Sponsor] had given him a gift of $1 million in 2003, he could still sue her for failing to support him at 125 percent of the federal poverty level during that year”).

[31] 8 C.F.R. § 213a.1.

[32] No. COA16-53 (N.C. Dec. 6, 2016).

[33] Younis v. Farooqi, 597 F. Supp. 2d 552, 555 (D. Md. Feb. 10, 2009) (“child support is a financial obligation to one’s non-custodial child, not a monetary benefit to the other parent”).

[34] 336 P.3d 701, 712 (Ala. 2014).

[35] No. 2:10-cv-01003, 2013 WL 3085208 at *3 (S.D. Ohio June 18, 2013) (citing http://www.irs.gov/taxtopics/tc418.html).

[36] No. WGC-13-916 (D. Md. March 4, 2014) (memo. op.).

[37] Id. (citing Shumye v. Felleke, 555 F.Supp.2d 1020, 1026 (N.D. Cal. 2008) for the proposition that housing subsidies offset I-864 damages).

[38] No. 14-15362 (9th Cir. June 8, 2016). See also Toure-Davis v. Davis, WGC-13-916 (D. Md. March 4, 2015) (memo. op.) (holding that U.S. citizen children of the I-864 beneficiary did not count as household members for purposes of damages calculation).

[39] See Erler v. Erler, CV-12-02793-CRB, 2013 WL 6139721 (N.D. Cal. Nov. 21, 2013).

[40] That is, the number of individuals actually residing at the dwelling.

[41] See Toure-Davis v. Davis, WGC-13-916 (D. Md. March 4, 2015) (memo. op.) (“The minor children [of the I-864 beneficiary] are U.S. citizens; they are not sponsored immigrant children. The obligation of support imposed by Form I-864 is not legally enforceable by the minor children against their father Charles G. Davis. The issue of child support is a matter of interest to the State of Maryland.”).

[42] 336 P.3d 701, 712 (Ala. 2014). See also Toure-Davis v. Davis, No. WGC-13-916 (D. Md. March 28, 2014) (memo. op.) (“It is not readily apparent to the court whether Defendant provided financial support during Plaintiff’s absence from the United States between the summer of 2009 and December 14, 2010. The parties should discuss whether Plaintiff is or is not entitled to financial support during this period.”).

[43] Id.

[44] Id.

[45] No. WGC-13-916 (D. Md. March 4, 2015) (memo. op.).

[46] Santana v. Hatch, 15-cv-89-wmc (W.D. Wis. Apr. 29, 2016) (opinion and order).

[47] See, e.g., id.

[48] No. WDQ-11-1943 (D. M.D. Oct. 1, 2014). See also Toure-Davis v. Davis, No. WGC-13-916 (D. Md. March 4, 2014) (memo. op.) (awarding $32, 854.30 in fees).

[49] No. 2:14-cv-00110 JAM-DAD (N.D. Cal. Aug. 12, 2014) (order denying defendant’s motion for attorney fees).

[50] Id. (“If Congress intended to allow defendants to recover attorney’s fees pursuant to § 1183a(c), either under a dual standard or an evenhanded approach, this Court would have expected it to include a prevailing party provision”).

[51] Gross v. Gross, E057575 (Cal. App., 4th Dist., 2nd Div. Dec. 4, 2014).

[52] Id.

[53] See, e.g., Santana v. Hatch, 15-cv-089-wmc (W.D. Wis. Apr. 1, 2015) (opinion and order granting request to proceed in forma pauperis).

[54] See 11 U.S.C. § 101(14A) (defining domestic support obligations).

[55] Cf. McLawsen (2014), supra note 1, at text accompanying note 37. See Matter of Ortiz, No. 6:11-bk-07092-KSJ, 2012 Bankr. LEXIS 5324 (Bankr. M.D. Fla. Oct. 31, 2012) (granting summary judgment to beneficiary); Hrachova v. Cook, 473 B.R. 468 (Bankr. M.D. Fla. 2012).

[56] In re Williams, 15-10056-BAH (BK D. N.H. Jan. 7, 2016).

[57] For an earlier discussion of the doctrines of Younger and Colorado River absention, see Pavlenco v. Pearsall, No. 13-CV-1953 (JS)(AKT), 2013 WL 6198299 (E.D.N.Y. Nov. 27, 2013) (memo. order).

[58] Levin v. Barone, No. 14-cv-00673 (AJN) (S.D. N.Y. Jan. 28, 2016) (order).

[59] Cf. Colorado River Water Conservation Dist. v. United States, 424 U.S. 800 (1976).

[60] Cf. McLawsen (2012), supra note 1, § II.B.1.

[61] 332 P.3d 1016 (Wash. 2014).

[62] Id. at 1018.

[63] Id. at 1020.

[64] Id. at 1018 (“[The parties] both agree that [Sponsor] owes an ongoing support obligation under I-864”).

[65] 337 P.3d 72 (Kan.App. 2014) (internal citation and quotation omitted).

[66] No. 2:14-cv-100 (N.D. W. Vir. March 26, 2015) (report and recommendations). See Du v. McCarty, No. 2:14-CV-100 (N.D. W. Vir. Apr. 16, 2015) (order adopting report and recommendations).

[67] No. 2:14-cv-00110-JAM-DAD (E.D. Cal. Apr. 10, 2014) (order granting defendant’s motion to dismiss).

[68] Cf. McLawsen (2012) supra note 1 at Section II.B.2.

[69] Cf. Pavlenco v. Pearsall, No. 13-CV-1953 (JS)(AKT), 2013 WL 6198299 (E.D.N.Y. Nov. 27, 2013) (memo. order) (discussing applications of Younger and Colorado River abstention).

[70] No. 14-15362 (9th Cir. June 8, 2016).

[71] Erler, No. 14-15362.

[72] Cf. McLawsen (2014) supra note 1 at Section III.A.

[73] CV-12-02793-CRB, 2013 WL 6139721, at *2 (N.D. Cal. Nov. 21, 2013) (order denying plaintiff’s motion for summary judgment and giving parties notice regarding possible summary judgment for defendant).

[74] No. WGC-13-916 (D. Md. March 28, 2014) (memo. op.).

[75] Emphasis added.

[76] McLawsen (2012) supra note 1, at text accompanying note 141 (citing Affidavits of Support on Behalf of Immigrants, 71 Fed. Reg. 35732 (June 21, 2006)).

[77] Toure-Davis, end note 5.

[78] Dahhane v. Stanton, 15-1229 (MJD/JJK) (D. Minn. Aug. 4, 2015) (report and recommendation).

[79] Id.

A note from AAAPG founder, Dr Sam Sugar:

I urge all readers who are outraged by this abuse to sign the change.org petition, Release Jean Wahab- an American senior citizen imprisoned for no crime.

Guardians from Hell

The completely legal, utterly grotesque system for undermining the rights of the elderly

By Gretchen Rachel Hammond

June 21, 2018 • 2:00 PM

At 92-years-old, Virginia “Jean” Wahab hadn’t lost any of the vitality and health she maintained throughout her life. She raised two daughters as a single mom and made a home for them in the Detroit, Michigan suburb of Oak Park. Wahab worked on her feet and didn’t retire from her job at a local family restaurant until she was 88.

Fiercely independent, Wahab was quite happy living at home after retirement. She had a healthy social life. She did her own grocery shopping and chores. She so rarely needed to pay a visit to a hospital that her health insurance was barely touched.

Her eldest daughter Mimi Brun converted to Judaism at the age of 18. She went on to become a prolific Jewish artist, who sold her work all over the world. In 2010, she began to establish art schools for children under 12 in France and then Chicago. Although Brun was estranged from her younger sister, she and her mother were extremely close. Wahab was Catholic, but Brun noted that she had the fastidious nature of a Jewish mother.

Wahab’s legal affairs were in order including a durable power of attorney she had signed in January, 2016 which named Brun as a patient advocate (the handler of her medical needs) as well as giving her daughter charge of her financial affairs should she ever become incapacitated. Wahab’s home was also registered in Brun’s name in a quit claim deed signed by Wahab on December 29, 2014.

The two talked on the phone every day. Brun particularly relished visits with her mother during which she would gift her a piece of art. Wahab was an eager collector of Brun’s work.

That was two years ago. Everything has changed since then.

In 2016, after a fall at her home, Wahab was diagnosed with a slight cognitive problem but otherwise deemed healthy. Wahab’s doctor recommended that Brun find her a short-term rehab facility.

On a national level, the sheer power that has been extended by Probate Courts over wards and family members raises the question as to what the point is of making any kind of will when it can be rendered meaningless.

“I looked for a Jewish one,” Brun said. “They were all full. I found Lourdes because it had a five-star reputation.”

On February 23, that year, with the approval of her HMO, Wahab was admitted for short-term rehabilitation at Lourdes Senior Community in Waterford, Michigan—a nonprofit elder care facility founded by Dominican nuns in 1948. According to the organization’s 2016 I-990s, Lourdes listed end of year assets of $22,096,166.00. Expenses totaled $14,476,851.00

Brun said she made her mother’s meals and went to each of her physical and occupational therapy sessions.

“The insurance granted her up to 120 days,” Brun remembered. “She was excelling like a champ but the therapist at Lourdes started telling me she suspected Mom should not live alone. Mom and I decided that I was going to go back to France and Chicago, put my businesses on hold, rent out my homes and move my work and studio to Mom’s. It was what she had dreamed about—to spend the end of her life living with me.”

Brun left for France, placing her aunt and sister in charge of caring for Wahab while she was in rehab.

“I called Lourdes every day,” Brun said. “Then the insurance cut off.”

Brun asserted that she spoke to Lourdes social worker Sara Van Acker and pledged that she would enter into a payment plan. Shortly thereafter, however, she received an email from a Lourdes administrator which stated “Your payment plan with Sara Van Acker was not approved by me. I cannot receive partial payment nor be patient for your payment plan time frame.”

On June 6, Lourdes filed a petition for guardianship on the grounds of a $31,416.65 past-due bill. Brun said that the petition notice was sent to an address that was not hers. The petition shows that the address used to serve Brun belongs to an apartment complex in Harper Woods Michigan—one hour’s drive from Lourdes and 30 minutes from Oak Park. On the address, no apartment number is listed. It is also not the address listed on the Power of Attorney paperwork Brun says she provided to Lourdes.

Brun rushed back to Michigan. On the morning of June 29, 2016, she attended a hearing presided over by Oakland County Probate Judge Linda Hallmark, one of four judges serving there. Hallmark vacated Wahab’s power of attorney and appointed a local attorney Jon Munger as Wahab’s guardian. According to Brun, neither she nor her mother ever requested Munger’s services.

Also appointed by the court was a man named Matthew Jason Brown, another local lawyer. Brown was named as Wahab’s guardian ad litem (GAL)—a person entrusted with investigating what course of action is in the best interest of a person unable to care for themselves. The June 29 hearing was also attended by two representatives from Lourdes: Van Acker and Lisa Hibbert from the organization’s accounts receivable department.

According to court transcripts from that morning, Van Acker stated that she had filed the petition for guardianship because “there’s a concern about the nursing home being paid.”

This is not a story drawn from a dystopian fantasy. It is happening today all over America, where Probate Courts employ an exponentially growing network of professional, for-profit guardians.

Brown wanted to know if an application for Medicare benefits for Wahab had been made.

“Not to my knowledge,” Van Acker replied.

“Are you familiar with [Wahab’s] medical condition?” Brown wondered, to which Van Acker answered “slightly.”

When Brown asked Brun if she had any objection to the petition, Brun replied “I am contesting this hearing because I was not served. I’ve had no time to get a lawyer.”

“Well, you’re here Ma’am,” Hallmark replied, “and it’s a guardianship so there is some urgency about it, so we’re going to proceed.”

When Brun protested that she had been appointed as Wahab’s guardian through a power of attorney, Hallmark quickly rebuked her.

“That’s different than an appointment by the court,” Hallmark said. “Has any court appointed you guardian?”

“No, but I haven’t applied for it yet,” Brun replied. “I’d like to petition for it, but I need time.”

Hallmark did not respond to this request.

In delivering his report to the court, Brown went on to state that he had visited Wahab at Lourdes only two days earlier. During that visit, he said, he “explained to Wahab her rights and gave her a copy of [the petition].”

“She didn’t have any objection to the appointment of a public administrator at that time,” he added. “But I would note that she was not oriented to date, time, and place.”

Brown also stated that he “went over [Wahab’s] medical condition with Ms. Van Acker and she went over with me sheets that said she was suffering from dementia, unspecified lack of coordination, osteoarthritis, two…type two diabetes, muscle weakness and hypertension.”

Transcripts from that day indicate that Hallmark never asked for medical reports to prove Brown’s assertions.

Brun told Hallmark that she had witnesses who would speak on her and Wahab’s behalf. Those witnesses, however, were never called.

“My Mom needs love,” Brun went on to tell Hallmark. “No one loves my Mom more than me. When I asked my mom ‘what’s your greatest desire?’ she said ‘I want to go home. I want to go home with you.’”

“I want to take her home,” Brun begged Hallmark.

“I’m going to grant the petition,” Hallmark said. “I would like to appoint Mr. Munger [as guardian]. If he thinks that an independent medical or some other action is required that’s fine. I’m also going to appoint [Munger] as special fiduciary to make sure we have the Medicaid application on track. I’ll revoke the power of attorney today. If it’s appropriate that [Brun] should serve, if you want to get counsel and bring the matter in, we’ll consider that.”

“She hasn’t lost any of her rights…” Hallmark added, speaking of Wahab. “She has a guardian and it’s Mr. Munger…”

Brun made one last desperate plea. “Is there a reason why?”

“Yes,” Hallmark replied. “Because she’s in need of a guardian and I’m appointing Mr. Munger. That’s why.”

Hallmark never mentioned the grounds by which she was revoking the power of attorney.

The court adjourned.

Brun’s fight to have her mom released from Lourdes would eventually result in Hallmark issuing an injunction restraining her from entering Lourdes premises, denial of her visitation rights (even when chaperoned by a nun and a locally renowned, retired judge) and a bench warrant from Hallmark’s court for Brun’s arrest.

Two days after Munger had been assigned, Brun received an email from his office which stated “It will be necessary to close [Wahab’s] bank accounts and locate all assets in order to apply for Medicaid. I understand that there is at least one account at ****** Bank with both of your names on it. It would be more efficient if you cooperate with the closing of the account(s). I will need proof of closure for the Medicaid application. I will then open a guardianship account at ******** for your mother, pay her bills, and apply for Medicaid.”

Even though Wahab was originally admitted for a short-term rehab at Lourdes, on July 1, 2016, according to his own accounting, Munger completed a long-term medical assistance application that entitled Lourdes to three months of retroactive disbursement, faxing the application to Michigan State’s Department of Human Services. Five days later, Munger completed and mailed another admissions packet to Lourdes for Wahab.

A July 17, 2016 affidavit, signed by Wahab and filed in court, read “I want to go home with my daughter Mimi.”

On August 15, 2016 Brun’s then-attorney sent a letter to Lourdes CEO Sr. Maureen Comer stating “Ms. Brun has not and has never been opposed to negotiating the payment of the outstanding bill. Ms. Brun has made arrangements to take Ms. Wahab home and Ms. Wahab has even signed an affidavit stating she wants to return home.”

Two days later, Brun, her attorney and Lourdes received an email from Munger which stated that he was clarifying “for both Lourdes and for yourself, that I am not authorizing either Mimi Brun or yourself to discuss, negotiate or otherwise become involved in any potential discharge plan nor payment.”

Munger also went on to say “there have already been repeated complaints about your client’s behavior while at Lourdes facility. I have not yet taken full steps to curtail your client’s visitation, but we may need to revisit that issue.”

In a subsequent series of emails Brun’s then-attorney called Munger’s actions “highly inappropriate. You are needlessly dragging on this litigation so you can keep billing and billing.”

Munger replied “You and your client will cease any communication with Lourdes administration or management. Your failure to abide by this requirement will simply force me to place the matter before Judge Hallmark, where I will ask that both you and your client be sanctioned for this grossly unprofessional, abusive and threatening behavior. I simply will not allow either of you to interfere with Virginia’s care.”

On August 18, 2016, Munger billed Wahab $245 for his drafting “of a petition to limit visitation.”

An email that day from Munger to Brun’s attorney stated that it was “due to your attempts to pay Lourdes.” It makes no mention of any complaints about Brun’s behavior.

Because he was Wahab’s guardian, Munger was legally permitted to bill his ward for any work on her behalf. A 2017 statement of other fees and services billed to Wahab by Munger and Associates shows that in little over a three-month span, Munger billed Wahab a total of $6,097.00 in fees and services.

Brun filed an emergency petition to have Wahab released from Lourdes. In an October 5 hearing in Hallmark’s courtroom, Munger was represented by attorney Joseph Ehrlich.

Munger billed Wahab $450 to “attend hearing on court motions and “[a] conference with judicial staff attorney.”

Following the hearing, Ehrlich secured an order from Hallmark compelling Brun to pay $25,000 to Lourdes and gave her 25 days to come up with the cash.

Brun told me that, because it did not include the provision for her mother to be released, she refused to pay it.

A subsequent motion Brun filed to vacate the order stated that “upon review of the transcript of this hearing, at no point did Brun ever agree to pay $25,000 to Lourdes. It does not comport with the settlement placed on record.”

Lourdes retained attorney Mary Lyneis to represent them.

A November 2016 letter from Lyneis to Brun accused her of violating “Court Orders entered into the Probate Court.”

While it did not mention which of those orders Brun was supposed to have violated, it went on to accuse her of “Threatening conduct toward the staff at Lourdes. In addition, you upset your mother with unfounded allegations the staff at Lourdes. As a result, you are hereby notified that you are no longer permitted on the premises. Should you attempt to enter the premises, appropriate law enforcement will be contacted.”

The letter offered no evidence of any court order sanctioning a decision to bar Brun from the premises.

In a February 2, 2017 email, Lyneis told Brun “We want to be paid. You cannot expect to show up to see your mother when you have not paid for the privilege and you have disappeared since November.”

A subsequent email from Munger to Brun stated “If you want to visit your mother and or even remain in contact with her, you would be better served by complying with the existing court order than by continuing to harass everyone trying to see your mother. In particular, pay the $25,000.”

Concerned about being able to pay her legal fees, Brun sold her and her mother’s home to Michigan banker Bradley Silverstein on the proviso that he draft a lease for her and Wahab to live there. A lease with that condition was drafted on February 28, 2017.

Two days later on March 1, 2017, Ehrlich, Lyneis, and Munger appeared before Hallmark and asked for a series of ex parte orders against Brun.

Ex parte orders are issued without the presence of or even notification of the parties it affects. Since due process is Constitutionally guaranteed, these orders are supposed to be temporary while allowing ample room for them to be contested.

Brun was not present at the hearing when the ex parte orders were issued. At the time, with the support of her doctor and with his medical order in the court file, she had requested a two-month medical leave from the court.

Hallmark also issued a permanent injunction against Brun restraining her from entering Lourdes premises, and a bench warrant for arrest alleging that her refusal to pay the $25,000.00 was in contempt of court.Regardless, Munger and Ehrlich requested that the house be transferred back to Wahab’s name “and then [to] permit Jon Munger to sell the house in order to pay for her care, so that [Wahab] would then qualify for needs-based benefits.” The court issued this order on June 28, 2016.

Brun told me that, in the months that followed, Munger attempted to force his way into the house. On August 8, 2017, she filed a police report, complaining that Munger had attempted to enter the house on three separate occasions.

When Brun replied that she had never received such an order, Munger wrote “A hearing was held on June 21 in front of Judge Linda Hallmark, and you received notice of that. I have every legal right to enter your mother’s home, and I have done so.”A June 30 email from Munger to Brun read “As you are aware, Judge Hallmark entered an order in the eviction case requiring you to vacate your mother’s home by Wednesday, June 28th 2017. I went to the home with several others on the following day, June 29th, and it was apparent that no one was residing in the home. Accordingly, we had the locks changed and the home secured. Upon our entry into the home, it was apparent that you had left a great deal of valuable personal property behind, including artwork. We deem this to be abandoned property under the law. For the time being, we are holding that personal property and artwork as security for repayment of the $25,000 you were ordered to pay on October 5.”

Brun has filed criminal police reports for larceny home invasion and theft against Munger with the Oak Park Police. The police took no subsequent action.

On August 30, Munger billed Wahab $245 for “a hearing to set aside deed” and $119 for calls to the real estate agent and the locksmith.

Brun said she was not present at any such hearing.

Brun’s attorney Phillip Strehle would later tell Hallmark “In October ’16 [Munger] filed a forwarding address card with the post office which has Mimi’s name on top and Munger’s address on it. So, he already knew, as of October ’16, that whatever mail he sent to the house, she would never get, because he sent it to himself. Mr. Ehrlich told me out in the hall that the order of August 30 was entered because it was uncontested. There’s a reason why it was uncontested; because Ms. Brun was not properly served.”

Brun finally got a break in October 2017 when attorney Lisa Orlando became Wahab’s new Guardian ad Litem.

In two reports Orlando submitted to Hallmark in 2018, she wrote “I visited [Wahab] at Lourdes Senior Community first on November 16, 2017 and then again more recently, on February 28, 2018, at which time I again served her a copy of the petition, notice of hearing and the order appointing a Guardian ad Litem. I don’t believe that Virginia was able to understand the information being presented, however she did clearly say that she did not want to go to court. I then asked her if she wanted Mimi to be her guardian and she said ‘of course!’”

“In the opinion of this GAL, it is Virginia Wahab a 94-year-old woman, who is paying the price of these ongoing legal disputes and suffering harm by not being able to see her daughter for more than 17 months,” Orlando added. “To isolate and prohibit an aging Mother from seeing her daughter is heartbreaking to this GAL. Mimi Brun has priority under the statute and is Virginia’s choice to be her Guardian.”

An affidavit signed by Wahab’s sister Sr. Helen Essa reads “Mimi is a devoted daughter and attended to every detail of her mother’s care not ever putting her own needs first. I know how desperate my sister is to go home with Mimi and have Mimi care for her. I pray, as we all do, that my sister will not die in a nursing home.”

In concluding her report, Orlando cited Michigan statutes.

“Under MCL 700.5313(3)(b), [Brun] has priority over a professional guardian,” she wrote. “’If suitable and willing to serve as guardian, the court shall appoint, an adult child of the legally incapacitated individual.’” Under MCL 700.5313(2)(b), [Brun] is Virginia’s choice to serve as her guardian. I discovered no clear and convincing evidence why the Petition should not be granted.”

Yet, Munger still remains as the sole guardian for Wahab who is still at Lourdes. Despite her best hopes, Brun has yet to see her and bring her home

The question remains as to why the Oakland County Probate Court effectively became a debt collector for a nursing facility and why the now 95-year-old Wahab is still held there despite her own Guardian ad Litem opinion that Brun replace Munger as guardian and family members’ pleas to Hallmark that Wahab be allowed to go home with her daughter.

On May 25, 2018 Hallmark vacated the order to pay $25,000.00. Hallmark also found Brun not guilty of contempt of court.

Brun does not believe the petitions she filed in October to have Munger removed as guardian will even be heard until July.

“I have been offering to pay Lourdes the money to let my mother go but Munger refuses to accept my working with the facility,” she said. “I promised Mom that her last chapter would be her best. But I think my mom will die before Munger ever lets her go.”

Strehle, who has been Brun’s attorney since October, 2017, told me that he felt the entire case against Brun was “bizarre.”

“The transcript of June 29, 2016 does not comply with the statute or the court rules,” he said. “There’s not a single bit of evidence to support even the creation of a guardianship; not one iota of evidence.”

He added that for a nursing home to present a petition for guardianship based on a past-due bill is something “I’ve never seen in all my years of doing probate. Ever.”

In the [June 29, 2016] transcript, the guardian ad litem [Brown] is the one that’s asking the questions,” he added. “Not Munger. Not an attorney for Lourdes. That’s even more bizarre. Usually, the person asking the questions is the petitioner not the guardian at litem. The court grated it because of an overdue bill. That’s not a basis for getting even a limited guardianship.”

Strehle also addressed the March 1, 2017 subsequent bench warrant and injunction issued against Brun.

“In my view, the bench warrant against Mimi was entered improperly because of the $25,000 provision which the court recently vacated,” he said in an interview with me. “In her petition Lyneis was seeking a restraining order against Mimi. A restraining order lapses on its own in 14 days. That’s not what she got. The court granted her a broad injunction. Lyneis had a huge burden of proof to get the restraining order. After that, she was supposed to notify us of a hearing within 14 days. She didn’t do that. It was based on no evidence whatsoever.”

“After all this time, I still have not seen any evidence to support [Munger’s] guardianship,” he concluded. “I have emails from Lourdes saying ‘we don’t want [Wahab] here.’”

“Twice on the record now in open court Ehrlich has said he wants to get the house to pay fees,” [referring to both his and Munger’s legal fees]. “I don’t see how that’s a basis for keeping this poor woman in this location, isolated, with no visitation. I’ve never seen it before in 31 years of doing this.”

I reached out to both Lourdes CEO Sr. Maureen Comer and Lyneis. In a series of email responses, Lyneis requested my “credentials” in the form of a “CV”. When I refused to provide her with a resume, Lyneis declined to confirm or deny any of the emails or statements on court transcripts made by her or Lourdes staff members. She also refused to answer a long list of questions pertaining to everything from Wahab’s initial medical diagnosis to why a petition for guardianship was filed over a past-due bill.

I also reached out to Hallmark via email and telephone and was told by a staff member in her office that, since she had not responded to my email, it was an indication that she had no comment.

An Oakland County Probate Court Administrator later replied, “In the interest of fairness to those involved, it is this court’s policy not to comment on pending litigation.”

Wahab’s first GAL, Brown, however, did respond. “As I stated in my report, Ms. Wahab consented to the guardianship,” he wrote. “I also felt, after interviewing Ms. Wahab, that she needed a guardian to be appointed. The information regarding the medicals was given to me by the nursing home regarding Ms. Wahab’s medical condition and are consistent with my report and testimony.”

This is not a story drawn from a dystopian fantasy. It is happening today all over America, where Probate Courts employ an exponentially growing network of professional, for-profit guardians.

I talked at length to six other families—in Michigan, Arizona, New York and Illinois respectively about their experiences with predatory guardians; some are court appointed professionals, others are family members granted leave by Probate Courts to cut their siblings out of a ward’s life.

The tapestry of each story was as complicated as it was heartbreaking. Each narrator pulled on the memory of each thread of that tapestry and found tears, despair, rage and frustration behind it.

Dr. Sam J. Sugar, MD is the founder of Americans Against Abusive Probate Guardianship (AAAPG) and the author of the May 2018 book Guardianships and The Elderly: The Perfect Crime.

“In 2003 in Florida, there were 23 professional guardians,” he said. “Today, there are 670.”

According to Sugar, these guardians are sometimes no more than high-school graduates with little or no experience and are often untrained, uncertified and unlicensed. Yet they can make $85-per-hour-per-ward-per-day. An income potential of $100,000-per-year can be earned simply by opening the daily mail belonging to half-a-dozen wards.

“The stated occupation of one of the most prominent guardians in the State of Florida is ‘dog walker’,” Sugar said. “But she has control over the lives of elderly people and multi-million or billion-dollar estates.”

Speaking generally, and without addressing Munger or any other guardian, Sugar described what he said was a common pattern.

“The first thing the guardian does, within the first 30 days, is to collect every nickel the ward owns. It’s called ‘marshaling the assets’,” he explained. “Then they seize recurring revenue streams. If you’ve ever worked, been in the armed services or had a pension, you represent a tremendous amount of income because the guardian now controls your Medicare or Medicaid. They seize and divert social security payments or veteran’s benefits and change beneficiaries on life insurance policies.”

Sugar added that the power guardians are given concerning a ward’s home or estate can result in “Strawman Sales.”

In a Strawman Sale, a guardian will appraise a home for a low amount for which he will secure court approval to sell. After ransacking it and taking whatever is of value, the guardian will then use a colleague, friend or associate to purchase the home at the court-approved rate. The court will then be sold at its full value allowing the guardian to keep profits never reported to the court.

(from Joanne) a strawman sale is where the sale is fixed to a friend or relative for a low ball price typically half or less of the home’s value. This is done by ruining the home by letting water run, cutting heating pipes (Teichert), letting the building freeze and water pipes break (Teichert), sealing the house so mold forms throughout (Wyman) and other dastardly ways to make it a home no one wants. The grass will grow a foot tall, trash will accumulate in the front yard and back yard, etc. Once the house is sold to a friend (often the attorneys involved have spouses that deal regularly in probate homes for big bucks), the house is cleaned, fixed up and flipped for either another fake sale or it will be sold for full value. The practice is common and there is no court oversight on these crimes. A typical guardianship can often involve a string of felonies against one ward and his or her family. (Wyman, Sykes, Teihert, etc.)

“There are an endless number of ways for a guardian who is a layer to profit particularly from one ward,” he said.

Meanwhile, the family members who fight in Probate Courts to have their loved ones restored to them are systematically drained both emotionally and financially; punished for daring to oppose a system which is completely out of control and has all but been left unchecked, except by those few who have run afoul of it and fought back through ceaseless activism.

* * *

For eight years, Sugar has made it a life mission to raise awareness about guardianship abuse.

The son of two survivors of Auschwitz and Bergen-Belsen, who met in a Swedish refugee camp after liberation, Sugar arrived in the United States with his parents in 1949 and settled in Chicago. After a successful practice in internal medicine and a directorship of medical services at a North Chicago hospital, Sugar retired with his wife to Florida proud to leave the work of continuing the family legacy to their four children and eleven grandchildren.

Prior to eight years ago, Sugar was like many Americans. He was, he said, unaware of a nationwide industry that, in his opinion, was created around hijacking seniors and plundering every last item of value from them.

Sugar’s own family became involved in a legal matter involving guardianship—one he still cannot discuss today because, like the family courts who dispense judgment on the future of minors, those charged with rendering decisions on the elderly routinely issue the same non-disclosure gag orders which, under the auspices of privacy, also serve to shield court employees from accountability from the media or from legislators.

One thing Sugar can talk about was the effect the case had on him.

“It seemed to me that this was a system unbelievable for it to be occurring in the United States,” he said. “It was so off the charts, so unexpected and cruel that I decided to get educated. I had thought we were the only ones but, very quickly, I ran into people who had the exact same thing happen to them.”

“I wish I had never heard the term ‘guardianship’,” Sugar wrote in his book. “Our entire American legal system hinges on the faith and trust of the American citizen. Our country’s three foundational documents take great pains to enumerate and guarantee the unique ideals that countless Americans have been willing to die for. Our tacit understanding of government is that, if we abide by the laws of our land, our sacred rights will be guaranteed. In guardianship, however, everything is different. Innocent individuals can be stripped of their rights by probate courts. In fact, most wards have even fewer rights than do convicted serial murderers.”

“Who would believe such a thing?” Sugar wondered aloud, in an interview with me.

Brun and Wahab do. They have been living it. And they’re not the only ones.

In October, 2017 WXYZ television in Lansing, Michigan launched an investigation into the Oakland County Probate Court and its court appointed guardians Barbara Andruccioli and Thomas Brennan Frasier whom a family member accused of neglecting and financially exploiting her parents Lorrie and Sandy Kapp.

Andruccioli and Brennan have yet to respond to these allegations.

The Oakland County Probate Court judge in the case, Daniel A. O’Brien, issued an ex parte order denying WXYZ the ability to show the Kapp’s faces.

Andruccioli was subsequently fired as a public administrator and has become part of a still ongoing criminal investigation by both the Oakland County Prosecutor’s Office and the Sherriff’s office yet she still remains conservator and guardian for cases at the Oakland County Probate Court.

According to court documents from the Michigan Court of Appeals, in 2011, Hallmark appointed Munger as guardian to Angela M. Robinson who had been declared legally incapacitated. In 2012, her parents Remo and Marie Marzella petitioned Hallmark to remove Munger as guardian and transfer her to their care. They claimed Munger “had not investigated Angela’s best interests or made proper decisions regarding her future care.”

Following an evidentiary hearing, Hallmark denied the petition.

“I am not going to remove Mr. Munger at this point,” she said. “I don’t find that Mr. Munger did anything wrong.”

In a subsequent 2014 lawsuit, the Marzellas accused Munger of committing legal malpractice. Among the complaint’s allegations, Munger “failed to investigate and ascertain Angela’s best interests with respect to her living arrangements, advocated for Angela to live in an institution instead of with her family” and “failed to foster Angela’s family relationships and family involvement in her care and life.”

“Angela and her special needs trust were subsequently shorted and she and her family suffered economic and non-economic damages,” the complaint added.

Munger claimed that, because Hallmark had already ruled he “did nothing wrong” during the petition for his removal, the Marzellas were barred by “collateral estoppel” (preventing an issue from being relitigated.)

In 2016, the Michigan Court of Appeals found that “no discovery was even conducted before [the evidentiary] hearing. Simply stated, the probate court’s decision not to remove Munger as Angela’s guardian was not tantamount to a finding that Munger did not commit legal malpractice or breach fiduciary duties owed to Angela.”

It concluded that the Marzellas “never had a full and fair opportunity to litigate the issues underlying their claims.”

The same court dealt with the 2007 case of Brenda Cupp—who suffered head injuries after a car accident. According to court documents, her sister Dana Browning had been appointed as guardian. After Cupp’s attorney contested the case, Munger was appointed co-guardian and co-conservator of Cupp’s special needs trust.

Five weeks later, Munger petitioned the probate court for Browning’s removal as co-conservator “on the basis that she acted erratically during Cupp’s independent medical examination [IME] and Munger heard second-hand that Browning intended that the money in Cupp’s estate would not be used to pay legal fees.”

The petition was granted.

In 2010, the Michigan Court of Appeals ruled “the IME incident was not sufficient good cause to remove Browning from her co-conservatorship position a mere five weeks after her appointment” and that “the probate court abused its discretion in finding that good cause existed to remove Browning as co-conservator.”

In 2002, Joseph Ehrlich, was sanctioned over $113,000 by a Michigan Court for “pursuing frivolous litigation” in a case disputing the estate of John J. Fannon, Jr.

Ehrlich appealed in 2005 and, in denying that appeal, the court stated that “The record reflects that, when they joined the case, Ehrlich and his firm continued to file pleadings and documents that lacked factual and legal support. The record clearly reflects that Ehrlich failed to make reasonable inquiry into the factual and legal merit of the claims he asserted on behalf of plaintiff when he knew or should have known that they lacked such support.”

On his website, Munger claims to be an Oakland County Public Administrator although an email from State Public Administrator Michael Moody reads “Mr. Munger’s appointment as an Oakland County Public Administrator was terminated on October 6, 2017.” Munger is also not among the Oakland County Probate Court’s list of Public Administrators.

According to Sugar, Public Administrators serve as professional guardians for a Probate Court. He added that professional guardians who also function as attorneys can bill the ward for legal fees.

Between June 29, 2016 and September 19, 2017 Munger’s statement of fees and services billed for his guardianship of Wahab totaled $12,282.

I reached out to Munger by email and telephone and was told by his office secretary that he had no comment.

I reached out to Ehrlich via email and telephone. His office secretary responded that Ehrlich had never received the email. When I asked to speak to him in person, she concluded the conversation.

Abuse of the elderly by Probate Courts, attorneys and professional, for-profit, guardians across the United States is not a new issue However it is one that has yet to gain significant traction with the general public or legislators on a State or Federal level despite investigations conducted by both local and national media outlets which reveal activities that take exploitation to unprecedented and sickening heights.

As early as 1987, the Associated Press was raising the alarm about this issue, in a story headlined “Guardians of the Elderly.” The report described a process that “uproots people, literally ‘unpersons’ them [and] declares them legally dead.” A Las Vegas television station KTNV reporter Darcy Spears conducted an exhaustive investigation in 2015 during which one alleged victim of professional guardian April Parks described the horrors he and his wife suffered as akin to “Nazi Germany.”

Spears has been relentless in her pursuit of those allegedly engaged in guardianship abuse.

Similarly, an October 2017 New Yorker article by Rachel Aviv meticulously detailed a litany of Parks’ alleged crimes, particularly against Rudy and Rennie North. According to the story, Parks forced them from their home and into a senior living facility while she drained them of every cent they owned. Although Parks had operated with the continual support of a Las Vegas probate judge, once the media got wind of her activities, that support quickly vanished. Parks was eventually charged with several felonies. She is currently awaiting trial.

On June 3, 2018 HBO comedian John Oliver addressed the guardianship issue.

Yet, many of those organizations who advocate for the elderly against guardianship abuse still face a continual challenge in raising awareness about the nationwide scope of the problem.

* * *

Sugar and the AAAPG fight to shed light on the issue. With a nationwide network of chapters but limited resources and a shoestring budget, today the AAAPG advocates for over 1,200 multigenerational families from attacks waged and sanctioned by their own states and a legal system in which the Constitution or any of its amendments are utterly meaningless.

“Our mantra is ‘educate, advocate, legislate’,” Sugar said. “That’s in response to the [unofficial] mantra of for-profit guardians—which is ‘litigate, isolate, medicate, take the estate’.”

Often, Sugar says he fields calls from five or six families-per-day who are victims of that mantra.

“The elderly themselves don’t call because their phones have been taken away,” he explained. “They aren’t given access to anything and are placed in every type of senior warehousing. For people with lots of money, the guardians have an incentive to find the cheapest place possible. Why waste money for potential fees on feeding or clothing the ward? They are given huge doses of… drugs for no corrective medical reason but to stop them crying or screaming. When the family protests, the judge retaliates by issuing an isolation order. The family cannot see their parents for the rest of their lives under threat of arrest.”

Sometimes, a family isn’t even involved. A state’s Adult Protective Services agency may be called. Sometimes, it’s a neighbor suspecting neglect or a dangerous living environment. In other cases, it is a doctor or bank teller who believe a relative is committing physical abuse or, ironically, financial theft.

Just as when a state’s Child Protective Services agency begins an investigation, once a court steps in, entire families find themselves thrown into a hellish system which, in every way imaginable, is designed to work against them while systematically bleeding them of the resources needed to keep fighting for their loved ones.

“Perhaps the most easily understood precedent to elder abuse trafficking is family discord,” Sugar said. “Any member of the family who is under the mistaken notion that, if they simply submit their grievances to an attorney, the attorney will give them control. But the system of guardianship is all about diverting power and money away from its rightful owners. The fundamental flaw to all these courts is that they are equity courts whether probate, divorce, family or bankruptcy. That means no juries, no rules of evidence or civil procedure. It’s one person [on the bench] and their impression of the information and so-called evidence that is put before them.”

Throughout a half-decade-long of discoveries, Sugar found that guardianship abuse has disproportionately affected Jewish families, particularly those with money.

He puts that down to a mixture of wealth and family dysfunction.

“There is a sense or entitlement with downstream heirs that is very strong,” he said. “They are very prone to litigate their family problems.”

There are also a number of cases involving Holocaust survivors.

Al Katz barely escaped numerous Nazi camps, including Dachau, only to become the ward of guardians in Florida at the age of 89, as court documents show.

“My father came to the United States in 1946,” his daughter, Dr. Beverly Newman, told me.

“His mommy, daddy, little brother, older sister, her husband and their one-month-old baby had all been murdered. He was a walking skeleton with no money, no job and didn’t know the English language. He felt very alone.”

Nevertheless, Newman remembered that her father never lost a wonderful sense of humor while he lived by the motto “Never forget, never forgive and never be bitter.”

It was at a Purim ball in Indianapolis that Katz met Sophia Passo.

“He was stricken with love,” Newman laughed. “He asked her over and over again to marry him. She just would not do it.”

Katz started to work in bakery and then a packing house where he was injured twice. It was when Sophia was visiting him in the hospital that she relented.

He and Sophia were married in 1947. Katz began a successful insurance career. The couple had two children, Newman and her younger brother, and were inseparable for over thirty years until Sophia passed away in 1977.

The devastation Katz felt remained with him the rest of his life.

After retirement, Newman said that her father became a snowbird, spending winters in Florida.

In 2009, concerned for his health, one of Katz’s doctors contacted a public guardian.

That individual was M. Ashley Butler who worked in the Office of Public Guardian for three Florida counties since 2006 together with a partner, Jo Eisch, under the business name Aging Safely, Inc.

Newman maintained that the first she heard about it was when she was told by Katz’s Indianapolis attorney that “there are people poking around about putting your father into guardianship. That was August of 2009.

Newman added that hospital records she obtained from the time include numerous orders made by the guardians not to inform her of any medical decisions or procedures.

“On Rosh Hashanah, September 18, [Butler and Eisch] filed papers to put my dad into Emergency Temporary Guardianship,” Newman said, adding that neither guardian had ever met her father. “They didn’t even know him. I have the transcripts of the hearing. The judge knew that I had not been contacted and went ahead and approved it anyway. Things then moved very quickly.”

A 2011 Florida Supreme Court complaint filed by Newman and her husband noted that Bradenton attorney Ernie Lisch was appointed by the court to act as Al’s counsel.

“Despite many irregularities at the hearing, Lisch took no steps to advocate for or protect the rights of his client,” the complaint reads. Lisch contested these allegations, and the Florida Appellate Court ruled in his favor.

Newman discovered that Katz had been placed in Casa Mora Nursing Home in Bradenton.

In 2015, the Bradenton Herald reported that the facility was one of three on a Florida watch list “due to prior problems or deficiencies.”

The Herald noted, among those deficiencies, “A 58-year-old Casa Mora resident and the resident’s representative had requested in a resuscitate order that the resident receive CPR if she was ever found unresponsive. This procedure was not followed when she fell unresponsive. She was pronounced deceased after not receiving CPR.”

According to the article, these deficiencies have since been corrected.

Casa Mora is no longer on the state’s watch list.

Newman and her husband Larry immediately drove from their home in Indianapolis down to Florida.

She asserted that, shortly before they arrived on September 20, Butler utilized the Florida Baker Act—which allows for involuntary commitment—in order to place Katz in Manatee Memorial Hospital.

“They said that he had taken his walker and bumped it into someone at the nursing home,” Newman said. “But my Dad was barely able to use a walker. He was in very poor physical condition and not a danger to anyone else. They never told him anything. Not what was going on, nothing. We arrived while daddy was in the Manatee Hospital emergency room. It was horrifying. My dad just wanted to go home. A psychiatrist chosen by Butler and Eisch made a No-Contact order. The hospital kept my daddy in an underground unit, like a dungeon. There were armed guards and these huge electronic doors. A nurse told us he was pacing the halls like a caged animal. It was traumatizing.”

She added that Katz was there for three weeks.

Newman remembered Katz calling Butler and Eisch “Nazis” to their faces.

Meanwhile, like the family members in Michigan, Newman launched a fight to have Butler’s guardianship removed and her father returned to her care, as court documents show.

Opposed by Lisch, the case was heard on October 26, 28, and 30, 2009 in Florida’s Twelfth Judicial Circuit Court.

“In the intervening three weeks, Katz was repeatedly hospitalized and near death,” the 2011 complaint noted.

“Guardianship in Florida is a very lucrative industry,” Newman said. “People who go into guardianship lose every cent they ever had. Their families are wrecked.”

She stated that the guardians even took control over her father’s Holocaust Survivor Compensation checks as part of their oversight of her father’s assets.

I attempted to track down Butler. The telephone numbers for Aging Safely have been disconnected. Email addresses for Butler have been shut down. The last I-990 tax return filed by the organization in 2014 listed bet assets of $1,767.00.

As of publication, Eisch had not returned phone calls or email requests for comment.

In Newman’s case, Florida Circuit Court Judge Paul E. Logan (now retired) restricted visits to her father to only three hours-per-day. “He said I could never tell my daddy that I was fighting in court to get him home or that he was under guardianship,” Newman asserted. “If I did, I would lose visitation completely. Daddy was crying and saying, ‘Take me home!’ ‘Why do you have to leave me?’ ‘Why can’t I go home with you?’ and I was prohibited by court order from telling him the truth.”

On November 23, 2009 Newman won her petition for guardianship of her father but not his property.

“I didn’t care,” she said. “I just wanted to get daddy out of the nursing home and hospitals and give him a real life. It was such a relief that I couldn’t stop crying.”

However, by then, Katz was extremely ill and in the hospital.

“I spent Thanksgiving that year with my daddy and in the hospital,” Newman said. “In some ways, that as the best and worst Thanksgiving of my life. At least I could shower him with love and attention.”

By the time Newman and her husband got Katz home, it was Hannukah.

“He was finally smiling,” she said. “By New Year’s Eve, he was able to eat and talk. We took him to a restaurant that he liked. We got him all dressed up. He wanted us to take pictures of us celebrating New Year’s Eve. It was a happy time.”

Their time was all too short. Katz passed away on July 11, 2010.

“He had no catheters or feeding tubes in him,” Newman said. “He was just as normal as you could be at 90-years-old.”

In January that same year, Lisch filed a petition for $24,354.15 in attorney’s fees and expenses.

“For doing essentially nothing,” Newman asserted.

She opposed it and took the case all the way to Florida’s and then the United States Supreme Court, the latter of which declined to hear the case. Ultimately, Lisch prevailed in his original petition.

Even nine-years after her father’s death, Newman said she is still subjected to verbal abuse and numerous accusations from those with a vested interest in a system against which she has actively taken a stand. Meanwhile, she continues to fight in Indianapolis to settle her father’s estate and to remove liens on Katz’s properties.

In 2006, in the case of Marshall v. Marshall, the USSC determined that issues dealing with Probate Courts are “reserved to state probate courts” and “also precludes federal courts from disposing of property that is in the custody of a state probate court.”

In memory of her father, the Newmans founded the Al Katz Center for Holocaust Survivors and Jewish Learning in Bradenton.

“We serve many hundreds of persons every year through advocacy and programming open to the entire community,” the Center’s website reads, “and we are life-sustaining and life-saving to elders in peril and trauma.”

On the opposite side of the country, the probate and guardianship system created another activist and family advocate out of an individual who found herself opposing those who have successfully exploited it.

Terry Williams is the founder of Citizen4Justice.com which seeks to expose predatory guardians operating in the Las Vegas area and across the country. In February of 2003, after she found herself tied up in a guardianship case, Williams began to research other cases in Las Vegas probate courts, where she noted one particularly prominent name: Jared E. Shafer.

Shafer was appointed to an unexpired term as Clark County Public Administrator/Public Guardian in 1979.According to a 2005 document filed by the Nevada Commission on Ethics, he was elected as the Clark County Public Administrator in 1982 and spent the next 20 years in the role.

Prior to leaving office in 2002, Shafer was active as a private fiduciary and started a business Professional Fiduciary Services, Inc., and, in 2003 “publicly established himself as a private consultant/fiduciary in estate, trust, and guardianship matters. Most of Mr. Shafer’s business as a private fiduciary comes from the court and attorneys he worked with during his tenure as a public official.”

A 2017 article in the Las Vegas Review Journal called Shafer “the county’s most prominent private guardian.”

“[Shafer] is considered an insider in the Las Vegas legal community,” the Review Journal added, “where his contacts with judges, politicians and prominent business leaders go back decades. Despite repeated accusations of financial irregularities, ethical lapses and at least one FBI investigation, he has never been accused of a crime.” I reached out to Shafer’s business Professional Fiduciary Services via telephone. No response was received as of time of publication.

According to KTNV in July 2017 a 28-year-old sufferer of cerebral palsy named Jason Hanson filed a lawsuit against Shafer, the current public administrator and attorneys (three of whom served on the Nevada Supreme Court’s 2016 Guardianship Reform Commission) for racketeering, fraud, negligence, and unjust enrichment. The lawsuit is ongoing.

William’s numerous attempts to secure justice for Shafer’s alleged victims through the Las Vegas Police Department were fruitless. She said that she is “waiting for the feds.”

The Bradenton police department wouldn’t help Newman. Brun said that the police in her case were similarly unable to act, unless it was to prevent her from entering Lourdes to see her mother.

The AAAPG has collected over 600 and growing fully-documented, self-reported cases of guardianship abuse which contain enough groundwork for the FBI or Department of Justice to investigate with barely the lift of a finger—if they were interested.

“They aren’t,” Sugar said. “They say it is a civil matter and that we should talk to a lawyer.”

While people like Williams, Newman, and Sugar say that their aim is to expose and fight guardianship abuse nationwide, there is an organization that advocates for those working in the profession.

The National Guardianship Association (NGA) was formed during a national conference in Chicago in 1988—one year after the AP’s article was released.

In the 30 years that followed, the NGA’s membership increased to over 1,000.

Sally Hurme is an attorney and member of the NGAs Board of Directors. She said that, while she is not and has never been a guardian, she has been involved in developing guardianship policy for decades.

“NGA does not have any mechanism by which to do anything other than to keep developing standards of practice and educating individuals who want to provide excellence in guardianship,” she said.

According to the NGA’s website, those standards of practice have increased from the original seven to their present number of 25. In 1997, the NGA voted to create an entirely separate entity, the Center for Guardianship Certification (CGC) on whose board Hurme has also served.

It states its vision as one in which “every professional guardian will obtain and maintain CGC certification.”

“The CGC is the only national certifying body for guardians,” Hurme said. “Any guardian; professional, family, public or volunteer is welcome and encouraged to become certified.”

Among the five pillars Hurme listed as necessary to obtain certification is an examination.

To become a Nationally Certified Guardian (NCG), the $375 exam is scored on core competencies including professional practices, knowledge of person under guardianship, application of surrogate decision making, medical decision making and personal and financial management.

The competencies listed in the $525 examination to be certified as a National Master Guardian (NMG) are basically the same with the addition of “professional practices of a master guardian” and knowledge of the guardianship planning process.

Hurme stated that, at present, there are approximately 1,500 certified guardians.

“There is an agreement to a disciplinary process which receives grievances, determines whether there is probable cause to go forward with a professional review board,” she stated.

Ironically, according to Hurme, the professional review board is one in which “due process” is afforded to a certified guardian while a determination is made as to whether or not they have violated standards of practice.

“The professional review board has a range of sanctions from a letter of concern, to suspension, dismissal to decertification,” Hurme said. “The one problem with the CGC process is that we can only hear grievances if the individual is certified. If we receive a complaint about a guardian that is not certified, our hands are tied. There’s nothing the CHC can do.”

The CGC’s list of disciplined guardians posted on its website numbers 12 and includes April Parks alongside guardians from Oregon, Texas, Utah, Nevada, New Hampshire, New Mexico, Ohio, Oregon and Michigan.

The CGC lists 12 States that ask for mandatory CGC certification for its guardians or have their own State-specific licensing requirements. In the case of California, it’s a combination of the two. Michigan is not among them. Since 2016, Florida has employed The Office of Public and Professional Guardians (OPPG) to regulate “more than 550 professional guardians statewide, which includes investigating and, if deemed appropriate, the discipline of guardians in violation of the law.

“NGA and many of the other organizations such as those that are members of the National Guardianship Network are continually striving to make guardianship work better for those individuals who will need it,” Hurme said.

As an example of those efforts, Hurme noted the Uniform Guardianship, Conservatorship, and Other Protective Arrangements Act (UGCOPAA). The over 150-page document was drafted, over the course of two years, by a committee consisting of multiple stakeholders including representatives from the American Bar Association (ABA) and was approved and recommended for enactment in all US States at a July, 2017 meeting of the National Conference of Commissioners of Uniform State Laws.

Hurme stated that members of the NGA, herself included acted as technical advisors to the commission “in making sure that the new model; law addresses many of the issues that are floating around in guardianship; perhaps that there are too many guardianships and that there needs to be more emphasis in limiting the authority of the guardian, better recognition of the due process rights of the individual and a more person-centered focus of the individual in the hearing process that limits the authority of the guardian.”

American Association of Retired Persons (AARP) Senior Legislative Representative Diana Noel was part of the drafting committee.

“I felt as if it was a very thorough process that was very public,” she said. “There were a lot of people in the room. One of the things that is very important; that the drafting committee really wanted to come across, which is why the name is so long, is to recognize that guardianship was a system that was really not including the individual that it was about. One of the things the act did was to update terminology. Instead of using the term ‘ward’, it’s ‘individual’ so that the focus is on the individual and so that they have a say in their care.”

A Uniform Law Commission document encouraging States to adopt the UGCPOAA, declares that, under the act, “Each guardianship and conservatorship will have an individualized plan that considers the person’s preferences and values. Courts will monitor guardians and conservators to ensure compliance and approve updates to the plan in response to changing circumstances.”

It adds that “Without a court order, a guardian under UGCOPAA may not restrict a person under guardianship from receiving visits or communications from family and friends for more than seven days, or from anyone for more than sixty day” and that the act “prohibits courts from issuing guardianship or conservatorship orders when a less-restrictive alternative is available.”

These provisions and others in the UGCOPAA could have protected Brun and her mother had the act been adopted in Michigan.

It hasn’t.

As of the time of publication only Maine has adopted it. The New Mexico State Legislature introduced it this year and opened it up for public comment.

Hurme pledged that the NGA would direct its advocacy efforts to assisting States in understanding the importance of what she called “a forward-thinking law.”

Sugar is dubious.

“States put a lot of effort into creating their own legislative agendas and their own statutes,” he said. “The restrictions are very stringent and might make it very difficult to continue guardianship as we know it in the United States.”

Noel is more optimistic.

“This isn’t a partisan issue,” she asserted. “This isn’t a caregiving and an aging issue. I don’t want you to think that, because States haven’t adopted it, that means that they are not looking at it. They may be looking at it. These things take time. They look at their current laws, they see what’s working and what’s not working and how things like the Uniform Act could help fix what’s not working or enhance what is.”

As to whether the CGC’s certification exam is working, Sugar called it a “relatively meaningless paper tiger that is not a rational way to monitor people simply based on paying a fee and taking some courses.”

“I’m not speaking against [the CGC] per se but it seems like a joke because, when there are problems, they seem to be so slow to act,” Williams agreed. “I have a problem with that and when they would try to smooth things over by claiming that these are isolated incidents. There’s too many people with the same scenario for that to be the case.”

“While predatory behavior does not happen in a majority of guardianships, our statistics based on State Court information, our own interviews and surveys indicate that 14 percent of all guardianships involve criminal activity,” Sugar said. “That is a large number of cases that we know about. We don’t know about any others because there are no statistics. If the National Guardianship Association were really interested in the welfare of wards it would work with us to develop reliable and meaningful data and statistics, so the subject can be studied appropriately.”

Noel says she has spent seven years fighting to stem these abuses.

“As long as I’ve been here, I’ve been working on this issue,” she said. “States have been working on and updating their statutes because they are pretty outdated. They’ve been around for a very long time. It’s a very complicated system. What we’re doing and what states are doing is making sure that policy and practice meet and complement each other.”

The AAAPG has had some success with Florida lawmakers which led to the unanimous passage of legislation aimed to curb guardianship abuses and the 2016 expansion of the state’s OPPG.

Federally, legislators have taken a similar interest. The Elder Abuse and Prevention Act passed by the senate and signed into law by President Trump in 2017, charged the Department of Justice with establishing “best practices for data collection on elder abuse” and “in coordination with the Elder Justice Coordinating Council, [to] provide information, training, and technical assistance to help states and local governments investigate, prosecute, prevent, and mitigate the impact of elder abuse, exploitation, and neglect.”

“We have a real long history in combatting abuse and exploitation and ensuring that State laws address and prevent abuse by a guardian or a neighbor or whoever,” Noel said. “We’ve really been engaged in working not just with State legislators but State courts.”

“You know how much difference it’s all made?” Sugar asked. “Zero. You can have all the laws you want but, if they aren’t enforced, they mean less than nothing. There isn’t any data. There’s nothing to collect.”

Wondering about the laws in a State like Michigan and how far they extended in the protection of wards and their families from predatory guardians and the probate courts which employ them, I reached out to probate attorneys across the State.

Nathan R. Piwowarski is a highly respected lawyer and share-holder at the firm of McCurdy Wotila & Porteous, PC in Cadillac. He has been practicing trust, estate and elder law for ten years.

Ronald Dixon has practiced law since 1975 and served as a hearing panelist for Michigan’s Attorney Discipline Committee for approximately 25 years.

Neither Dixon nor Piwowarski were asked to comment on or given the details about any case pending or decided in Michigan Probate Courts.

“The problem is that when a person needs a guardian or conservator, frequently the family members are not worked with by the court or by the guardian appointed,” Dixon said. “The families are concerned, always, about the living conditions for the ward.”

He added that a conflict between a conservator and the family can be easily avoided with a durable power of attorney that specifically names a family member and an alternative as guardian and conservator “and none other.”

However, if judges arbitrarily strike down a durable power of attorney in favor of a court-appointed guardian, Dixon noted that “they should not do that. They should follow the family wishes. If that happens, it should be immediately appealed.”

Note from Joanne: this is generally done on the spot, without due process, notice, petition, and discovery. I have rarely seen it done in a proper manner. Again, the problem is lack of knowledge of rights to the public and no oversight.

He added that a judge needs to demonstrate sufficient grounds as to why a power of attorney listing a family member can be discarded.

“The record should be complete,” he said. “Showing the reasons why this person is not qualified or cannot maintain their position.”

Piwowarski noted that the issue “can get a little bit complicated” depending on whether the power of attorney is generic and related to financial transactions or whether it concerns healthcare and placement issues (a patient advocate designation.)

“In the case of the latter, unless the court specifically invalidates that document and removes the patient advocate, it remains in place,” he said. “The law presumes that the patient advocate would continue serving. That document should stay around unless there was some problem with it like there were not an adequate number of witnesses when it was signed. There are also situations where there is a valid document, but the patient advocate is not doing their job or honoring the person’s preferences.”

In terms of the Constitutional rights a participant in Michigan’s Probate Courts can expect, Piwowarski cited Michigan Compiled Law (MCL) 700.5304 (4) through (6) which addresses the rights of the individual who is allegedly incapacitated.

“They include the right to a jury trial [or] a closed hearing, if they request it, the right to be present at a hearing, the right to obtain an independent medical examination,” Piwowarski said. “There are other procedural rights and protections that are supposed to be afforded the individual who is the subject of a guardianship petition. For example, they’re entitled to personal notice in advance of the hearing. The minimum personal notice requirement is seven days. They are supposed to be given a visit by the Guardian ad Litem who is then supposed to report back to the court, in a timely manner, about whether that individual desires to contest any aspect of the petition or exercise any procedural rights such as the right to request something less intrusive than a full guardianship.”

Note from Joanne; all of this rarely happens, the ward should be served by the sheriff to invoke due process, The court appointed attorneys and GALs often lie thoughout the process (Sykes, Teichert, etc. or are a part of the lies) and all conversations involving a waiver of rights should be recorded, the family should be given notice and the right to be present.

According to Piwowarski, different rights are afforded to those who have an interest in the subject’s welfare.

“There are certain rights that they just don’t have,” he said. “They can’t demand a jury trial. But if there is a durable power of attorney, all of those individuals are entitled to notice and entitled to participate in the proceeding.”

“In terms of who should be serving as a guardian, the nominated patient advocate is right near the top of the list,” he added. “So, the court should be looking to the patient advocate before almost anyone else. The way the statute should work and the way that it’s written is that the court can only intervene in a person’s affairs if that person is legally incapacitated and if there’s an actual need for the court to intervene. The court should evaluate, on the record, why a patient advocate is inadequate. There are express provisions in the Estates and Protected Individuals Code that tell the petitioner and the judge that they have to identify why the court has to actually intervene alternatives short of guardianship can’t be used.”

The question of how much power a professional guardian in Michigan has Piwowarski noted both a statutory and political dynamic.

“In terms of the statue, a guardian has the right to set appropriate access and limit access for a protected individual,” he acknowledged. “That said, the guardian is specifically required by statute to do everything they can to have as full of a life and as high of a level of function as possible. In terms of financial transactions, the court can issue protective orders to remediate situations where a vulnerable person made a property transfer when they didn’t understand it or were under inappropriate influence. A conservator is not able to do something like that without a court order and there should be pretty significant showing before a court would reverse a transaction like that.”

“In my experience the court is typically appreciative of the willingness of a public fiduciary [guardian] to serve,” Piwowarski added. “There is such a need right now for a variety of reasons; families are smaller and more spread out. The public fiduciaries typically are overworked so I can certainly see a situation where a court adopts an overly deferential attitude because of the role that they serve in keeping the local legal system functioning.”

“Oakland County is the wealthiest county in Michigan bar none,” Dixon said. “Frequently estates are incredibly large. Public administrators can err on the side of greediness for him or herself. Frequently, because the judge trusts them to carry out their tasks properly and in good order and rely on them for accurate information.”

Sugar described the Michigan statutes as “platitudes reflecting the rarely achieved aspirational goals of what should be a transparent system of protection for the vulnerable.”

On a national level, the sheer power that has been extended by Probate Courts over wards and family members raises the question as to what the point is of making any kind of will when it can be rendered meaningless.

Sugar’s book offers some preventative measures that include advance directives (power of attorney documents in financial and health matters) specifically forbidding the appointment of a professional guardian.

“Then you have to hope a judge reads it,” he added. “They often don’t.”

Williass also recommends establishing a durable power of attorney and an advance healthcare directive along with an estate plan.

“Make it with someone that you trust implicitly, who can take over for you in the event of a crisis or a health situation or something that may affects your ability to represent yourself,” she said. “But I would caution against full disclosure of the extent of your wealth to anyone other than the person you nominate.”

Ultimately, Sugar believes his campaign of raising awareness could at least begin to decrease the number of professional guardianships.

“If there must be guardianships, they must be moral, just and in the hands of family members—and not court predators,” he said.

Note from Joanne:

I have not read Dr.Sugar’s book so I cannot comment on it or recommend it. I am still hoping to receive a copy. If you have one, please send it along. Thanks

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